WILD'S  ANNOTATION 


OF  THE 


Torrens  Land  Title  Law 


OF  CALIFORNIA 


By  EDWARD  N.  WILD 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


ERRATA 

)n  page  64,  in  the  last  line  preceding  the  notes,  write  in  the 
word  "subsisting"  in  place  of  "substituting." 

On  page  84,  Sec.  63,  at  the  end  of  the  first  line,  write  in  the 
word  "charge." 

On  page  86,  Sec.  68,  in  the  heading  of  the  section,  write  in 
"with  power  of  sale"  in  place  of  "without  power  of  sale." 


TORRENS  GUARANTEE 
TITLE  Co. 

526  CALIFORNIA  BUILDING 

PHONE  TR.  3497  -  L€>S  ANCHtL«8,  CMj 


COPYRIGHT  APPLIED  FOR,   1915 
BY  EDWARD  N.  WILD. 


Pasadena,  Cal. 

NEWS    PRINTING   COMPANY 

1915 


WILD'S  ANNOTATION 


OF  THE 


Torrens  Land  Title  Law 

OF  CALIFORNIA 


CONTAINING  FULL  FORMS  FOR  PRACTICAL  USE  UNDER  ALL  SEC- 
TIONS OF  THE  ACT 


ALSO 

THE  DECISIONS  OF  THE  SUPREME  COURTS  OF  THE  SEVERAL  STATES 

WHERE  THE  LAW  HAS  BEEN  IN  OPERATION,  RELATING  TO 

THE   DIFFERENT   SECTIONS  OF  THE  ACT. 


By  EDWARD  N.  WILD 

Attorney  at  Law 
Pasadena,  California 


AUTHOR  OF 

Wild's  Journal  Entries,  under  the  Codes  of  Civil,  Criminal  and 

Probate  Procedure  of  the  State  of  Ohio  ;  the  first  published 

Annotation  of  the  Municipal  Law  of  Indiana,  Etc. 


1915 


4  PREFACE 

from  practice  under  it,  as  has  been  the  case  under  the  code  of 
civil  procedure,  and  undoubtedly  some  of  those  given  in  this 
work  will  require  modification ;  but  they  may  serve  as  a  basis  for 
practice,  which  is  all  I  can  reasonably  expect. 

E.  N.  WILD. 
Pasadena,  Cal.,  July  28,  1915. 


THE  TORRENS  SYSTEM 


The  purpose  of  this  system  is  to  establish,  and  certify  to  the 
ownership  of,  an  absolute  and  indefeasible  title  to  realty,  under 
Governmental  authority,  and  as  expressed  by  Judge  Shaw  of  the 
Supreme  Court  of  California,  "It  purports  to  establish  a  system 
for  the  registration  of  titles  to  land,  whereby  the  official  certificate 
will  always  show  the  state  of  the  title  and  the  person  in  whom  it 
is  vested,  and  to  provide  that  after  the  original  registration,  trans- 
fer of  the  land  may  be  made  in  the  manner  prescribed  in  detail  in 
the  act." 

The  title  is  established  in  the  person  found  to  be  the  owner, 
registered  and  a  certificate  of  title  issued,  and  afterwards  the  title 
to  the  land  can  not  pass  except  by  entering  the  transfer  on  the 
register  and  the  issuance  of  a  new  certificate. 

All  mortgages,  liens  and  other  matters  affecting  the  title  to 
registered  land  must  be  noted  on  the  folium  of  the  official  register 
which  is  set  apart  for  that  land. 

ADVANTAGES  OF  THE  SYSTEM 

The  advantages  of  the  system  will  readily  be  seen,  in  the  facility 
with  which  transfers  of  registered  property  may  be  made  and 
recorded  and  the  very  small  cost  of  the  same.  Also  in  the  fact 
that  the  owner  of  a  registered  title  has  the  authority  of  the  Gov- 
ernment behind  it.  The  law  will  be  of  special  value  to  real  estate 
owners  who  are  putting  on  the  market  tracts  of  land  cut  up  into 
lots  and  smaller  tracts.  They  will  find,  as  has  been  found  in  other 
states,  that  it  will  be  an  inducement  for  the  purchase  of  lots  to 
advertise  and  represent  that  thereafter  a  certificate  of  title  can  be 
obtained  at  a  very  small  cost. 

GUARANTEE  BEHIND  A  TORRENS  REGISTRATION  TITLE 

A  land  title  registered  under  the  Torrens  law  has  behind  it  the 
authority  of  the  State  of  California,  and  the  protection  given  will 
be  seen  by  reference  to  the  provisions  of  the  act,  as  follows : 

1. — The  decree  ordering  registration  shall  forever  quiet  the  title 
to  the  land  against  the  rights  of  all  persons,  known  and  unknown, 
except  only  as  in  this  act  provided.  Sec.  16. 

2. — The  registered  owner  shall,  except  in  case  of  fraud  to  which 
he  is  a  party,  hold  the  same  subject  only  to  the  estates  and  inter- 
ests noted  in  the  last  certificate  of  title  and  free  from  all  others, 
except  as  noted  in  Sec.  34.  These  are  treated  of  under  that  sec- 
tion, and  are ; — 

( 1 )  A  lease  not  exceeding  one  year,  where  there  is  actual  occu- 
pation of  the  land. 

(2)  Land  dedicated  as  a  public  highway. 


6  TORRENS  LAND  LAW 

(3)  An  easement  in  respect  to  the  land  created  within  one  year. 

(4)  Current  taxes,  or  special  assessment. 

(5)  Such  right  of  action  or  claim  as  allowed  by  this  act. 

(6)  Liens  under  the  laws  of  the  United  States  which  are  not 
required  by  the  laws  of  California  to  appear  upon  the  register. 

3. — If  the  registered  owner  has  taken  bone  fide  for  a  valuable 
consideration,  he  is  not  affected  by  the  fact  that  some  former  deed 
through  which  he  claims  was  forged,  or  executed  by  a  person 
under  legal  disability.  Sec.  38. 

4. — Nor  by  the  claims  of  any  person  defrauded  exercising  his 
rights  and  remedies  under  the  general  law.  Sec.  37. 

5. — No  title  adverse  to  his  title  shall  be  acquired  by  any  length 
of  possession.  Sec.  35. 

6. — No  unregistered  estate  or  claim  shall  prevail  against  it. 
Sec.  39. 

7. — The  certificate  of  title  shall  be  conclusive  evidence  of  a 
good  and  valid  title  to  the  land  in  any  action  for  specific  perform- 
ance of  a  contract  to  purchase  such  land,  and  in  an  action  for 
ejectment,  partition,  or  possession.  Sec.  41. 

8. — The  register  and  certified  copies  shall  be  conclusive  evidence 
that  the  person  named  therein  as  owner  is  entitled  to  the  land. 
Sec.  42. 

9. — No  person  shall  commence  any  action  for  the  recovery  of 
land  adversely  to  the  registered  title  after  one  year  following  the 
first  registration ;  and  that,  even  though  the  person  be  an  infant, 
lunatic,  or  under  any  disability.  And  when  the  action  is  brought 
within  the  year  it  must  be  made  to  appear  that  the  person  bring- 
ing such  action  had  no  actual  notice  of  the  proceedings  in  time  to 
file  his  objections.  And  the  provisions  of  this  section  sh'all  in  no 
way  affect  or  disturb  the  rights  of  any  person  in  said  land  acquired 
subsequent  to  the  registration,  bona  fide,  and  without  knowledge 
and  for  a  valuable  consideration.  Sec.  45.  In  that  case  any  person 
obtaining  judgment  against  the  land  must  resort  to  the  assurance 
fund  as  next  shown. 

10. — If  any  person,  without  fraud  or  negligence  on  his  part  is 
deprived  of  any  estate  in  the  land,  solely  by  reason  of  the  fraud, 
forgery  omission,  mistake,  or  misfeasance  of  any  registrar,  or 
deputy  registrar,  in  performance  of  official  duties,  he  may  recover 
its  fair  value  from  the  assurance  fund.  If  his  loss  has  been  caused 
either  wholly  or  in  part  by  any  person  other  than  the  registrar  or 
deputy,  and  judgment  against  such  person  can  not  be  satisfied  on 
execution  against  such  person,  the  amount  due  shall  be  paid  out 
of  the  assurance  fund.  Sec.  105. 

11. — The  production  of  the  owners  duplicate  certificate,  when- 
ever a  voluntary  instrument  is  presented  for  registration,  shall 
be  conclusive  authority  from  the  registered  owner  to  issue  a  new 
certificate  or  to  make  a  memorial  in  accordance  with  such  instru- 
ment and  the  new  certificate  or  the  memorial  shall  be  binding 


IN  OTHER  STATES  / 

upon  the  registered  owner  and  upon  all  persons  claiming  under 
him  in  favor  of  every  purchaser  for  value  in  good  faith.    Sec.  60. 

REGISTRATION  IN  OTHER  STATES 

Many  of  the  governments  of  the  old  world  have  adopted  modi- 
fied Torrens  acts.  The  law  of  Australia  of  1890  has  been  perhaps 
the  most  successful  of  any  of  the  acts. 

IN  THE  UNITED  STATES  several  of  the  States  besides  California 
have  adopted  varying  forms  of  the  act.  Illinois  in  1897 ;  Massa- 
chusetts in  1898;  Oregon  and  Minnesota  in  1901  and  Colorado  in 
1903.  Washington  in  1907;  New  York  in  1908,  repealed  and  a 
new  act  passed  in  1909. 

IN  MASSACHUSETTS  its  constitutionality  was  sustained  by  de- 
cision of  the  Supreme  Judicial  Court  January  3,  1900.  (Tyler  vs. 
Judges  of  the  Court  of  Registration,  175  Mass.  71). 

In  that  State  a  separate  court  was  established,  entitled  The 
Court  of  Registration,  composed  of  a  Judge,  an  Associate  Judge, 
and  a  Recorder  with  the  land  registration  office  in  Boston,  with 
jurisdiction  throughout  the  Commonwealth.  In  each  district  of 
the  State  there  is  an  assistant  recorder,  with  whom  the  application 
may  be  filed.  In  regard  to  the  operation  of  the  act  in  that  State, 
Judge  Chas.  T.  Davis,  of  the  Court  of  Registration,  says : 

"The  so-called  'Torrens  System'  as  enacted  into  law  and  ad- 
ministered in  Massachusetts  greatly  facilitates  and  makes  safe  and 
convenient,  transactions  in  real  estate.  The  reason  is  obvious. 
Under  the  law  the  oustanding  certificate  of  title  and  owner's 
duplicate  are  conclusive  evidence  in  all  courts  of  the  ownership  of 
the  land  therein  described  and  the  nature  and  extent  of  all  exist- 
ing encumbrances,  not  excepted  in  Sec.  38.  In  any  deed  or  mort- 
gage transaction  therefore,  all  that  is  necessary  is  for  the  deed  or 
mortgage  to  be  carried  to  the  Registry  with  the  owner's  duplicate 
certificate,  the  original  and  the  owner's  duplicate  certificate  looked 
at  to  see  that  the  entries  correspond,  and  then  pass  the  papers.  A 
deed  or  mortgage  transaction  can  thus  be  consummated  on  the 
same  day  the  parties  come  to  terms. 

"On  the  files  of  the  four  Registries  of  the  Metropolitan  District 
can  now  be  found  many  mortgages  to  savings  banks,  trustees  and 
trust  companies,  as  well  as  to  individuals ;  and  instances  arise 
where  banks  loaning  large  amounts  have  required  the  title  to  the 
property  loaned  on  to  be  registered  before  paying  the  money  over. 
Such  well-known  concerns  as  the  Boston  Consolidated  Gas  Com- 
pany, the  Boston  Elevated  Railway  Company,  the  Fore  River 
Shipbuilding  Company,  the  New  England  Structural  Company, 
the  General  Electric  Company,  the  United  Shoe  Machinery  Com- 
pany, the  Bay  State  Street  Railway  Company  and  the  Edison 
Electric  Illuminating  Company,  and  numerous  manufacturing 
concerns,  have  had,  or  are  having,  valuable  properties  registered. 


8  TORRENS  LAND  LAW 

The  law  is  also  being  made  use  of  with  special  advantage  by  real 
estate  owners  who  are  putting  on  the  market  tracts  of  land  cut  up 
into  house  lots.  They  find  it  to  be  an  inducement  in  selling  single 
lots  to  people  of  small  means  to  advertise  and  represent  that  no 
cost  of  examination  of  title  is  required,  as  the  land  is  registered 
and  that  a  certificate  of  title  can  be  obtained  for  $2.50  as  the  only 
expense.  Two  other  kinds  of  cases  are  afforded  relief  that  was  not 
available  before  the  establishment  of  the  Land  Court,  viz :  cases 
where  the  title  is  good  as  a  matter  of  fact  and  law  though  defec- 
tive of  record  ;  and  cases  involving  the  construction  of  wills  where 
the  Probate  Court  will  decline  jurisdiction  on  the  ground  that  the 
determination  of  the  question  is  not  necessary  for  the  purpose  of 
settlement  of  the  estate. 

"By  successive  steps  of  legislation  since  the  passage  of  the  orig- 
inal Registration  Act  of  1898,  the  Land  Court  has  become  the 
court  of  exclusive  original  jurisdiction  for  all  real  actions  in  the 
State,  and  a  great  majority  of  these  actions  are  now  brought  in 
the  form  of  a  registration  petition. 

"Up  to  the  first  of  January,  1914,  4712  petitions  for  registration 
of  land  had  been  filed  in  the  Land  Court  from  about  250  of  the 
363  towns  and  cities  of  the  Commonwealth.  The  assessed  value  of 
these  properties  at  the  time  of  filing  the  petitions  amounted  to 
$46,343,296.  In  the  four  largest  Registries  of  the  State  14,198 
certificates  of  title  have  been  issued  and  32,984  documents  regis- 
tered. As  operations  have  begun  in  all  of  the  twenty-one  Regis- 
tries of  the  State,  it  is  estimated  that  about  18,000  certificates  alto- 
gether have  been  issued. 

"In  the  Suffolk  Registry  District  during  the  year  1913  there 
were  49,272  unregistered  entries,  and  5,636  registered  entries, 
showing  that  in  about  fifteen  years  about  10%  of  the  business  of 
Suffolk  County  had  shifted  to  the  new  system.  In  ten  years  more 
it  is  probable  that  not  less  than  one-quarter  of  the  business  of 
this  county  will  then  be  under  the  Torrens  System. 

"On  the  first  day  of  January,  1914,  the  assurance  fund  in  the 
hands  of  the  State  Treasurer  amounted  to  $225,442.00.  But  one 
claim  against  this  fund  has  been  made  since  the  law  went  into 
operation,  and  that  is  of  small  amount." 

IN  ILLINOIS  the  Torrens  act  is  very  similar  to  that  of  California, 
but  changes  have  been  made  from  time  to  time  since  the  original 
adoption,  which  was  May  1,  1897,  making  more  specific  provis- 
ions, and  the  same  will  quite  likely  be  required  in  some  sections 
of  our  own  law.  The  act  was  held  constitutional  in  People  vs. 
Simon,  176  111.  165. 

The  following  letter  from  the  Registrar  of  Cook  County,  at 
Chicago,  and  the  accompanying  report  of  business  done  will  fully 
explain  the  situation  in  that  county: 


IN  OTHER  STATES 


REGISTRAR  OF  TITLES,  COOK  COUNTY,  ILLINOIS. 

Chicago,  December,  29th,  1914. 
Mr.  E.  N.  Wild,  85  North  Orange  Grove  Ave.,  Pasadena,  Cal. 

Dear  Sir:  In  reply  to  your  favor  of  December  23rd,  1914,  in 
regard  to  information  relative  to  the  Torrens  System,  beg  to 
advise,  we  can  say  that  it  has  been  an  uphill  fight  to  have  the 
people  get  acquainted  with  the  Torrens  System  and  to  gain  their 
confidence.  No  money  has  ever  been  appropriated  for  the  purpose 
of  advertising  this  system.  A  great  deal  of  credit  is  due  the  Cook 
County  Real  Estate  Board,  which  has  taken  up  the  system  and 
endorsed  it  and  have  had  neighborhood  dinners  in  every  section 
of  Chicago,  quarterly,  attended  by  real  estate  men  and  bankers, 
at  which  lectures  have  been  given  by  men  familiar  with  the  sys- 
tem ;  on  the  other  hand  the  title  companies  have  paid  commissions 
of  ten  per  cent  on  the  amount  of  business  brought  to  them  by  real 
estate  men,  lawyers  and  bankers,  which  made  an  army  of  com- 
mission salesmen  working  against  the  system,  but  at  last  it  has 
got  over  the  hill  and  is  coming  fast.  We  can  safely  say  that  we 
expect  during  the  year  1915  a  large  increase  over  1914  and  so  on 
year  after  year. 

Also,  attached  report  will  give  you  an  idea  of  the  work  done 
each  year  under  the  Torrens  System. 

Hoping  this  information  will  be  of  some  value  to  you  in  your 
efforts,  I  remain, 

Very  truly  yours, 

JOSEPH  F.  CONNERY, 

Registrar. 

ANNUAL  REPORT  OF  THE  TORRENS  SYSTEM 

INCUMBRANCES 


TRANSFERS 

Year 

Number 

Consideration 

1899 

20 

$  31.125.00 

1900 

48 

98,860.00 

1901 

55 

198.170.00 

1902 

165 

384,850.00 

1903 

309 

741,030.00 

1904 

445 

1,142,410,00 

1905 

748 

1,254,049.00 

1906 

988 

1.607,189.00 

1907 

1076 

1,414.181.00 

1908 

1006 

1,683,337.00 

1909 

1253 

2,186,587.00 

1910 

1725 

3.295,850.00 

1911 

2014 

3,235,138.00 

1912 

2243 

3.352,230.00 

1913 

3333 

5.367,548.74 

1914 

3840 

4,581,814.41 

Year 

Number 

Consideration 

1899 

21 

*   61,750.00 

1900 

30 

30,300.00 

1901 

41 

80,430.00 

1902 

93 

172,275.00 

1903 

173 

242,620.00 

1904 

268 

510,730.00 

1905 

435 

1,023,734.00 

1906 

621 

1,163.777.00 

1907 

701 

1,158,771.00 

1908 

682 

1,510,067.00 

1909 

1085 

2.205,041.00 

1910 

1268 

2.450.260.00 

1911 

1502 

2.828,333.00 

1912 

1882 

4,045,379.00 

1913 

2643 

5.506.214.16 

1914 

3189 

7.626.162.49 

10  TORRENS  LAND  LAW  OF  CALIFORNIA 

APPLICATIONS  FOR  INITIAL  REGISTRATION 

Year  Number  Value  of  Property 

1907  257  $  786,500.00 

1908  394  1,037,668.00 

1909  545  2,076,875.00 

1910  618  1,629,225.00 

1911  649  2,809,425.00 

1912  784  2,985,500.00 

1913  916  4,167,707.00 

1914  916  3,743,247.00 

IN  CALIFORNIA — DECLARED  CONSTITUTIONAL 

A  former  Torrens  land  law  was  passed  by  the  legislature  of 
California  March  17,  1897,  but  very  few  tracts  of  land  have  been 
registered  under  it,  owing  to  defects  in  the  law  which  have  been 
remedied  in  the  present  act.  The  consideration  of  the  act,  how- 
ever, came  before  the  Supreme  Court  of  the  State,  in  the  case  of 
Robinson  vs.  Kerrigan  reported  in  151  Cal.  Reports,  p.  42,  where 
the  validity  of  the  act  was  the  sole  question  presented  to  the  court. 
Judge  Shaw  rendered  the  decision  of  the  court,  and  by  reason  of 
its  application  to  the  present  act,  it  is  well  to  quote  his  entire  de- 
cision, which  is  as  follows : 

"The  object  of  the  act  is  well  stated  in  its  title.  It  purports  to 
establish  a  system  for  the  registration  of  titles  to  land,  whereby 
the  official  certificate  will  always  show  the  state  of  the  title  and 
the  person  in  whom  it  is  vested,  and  to  provide  that  after  the 
original  registration,  transfer  of  the  land  may  be  made  in  the 
manner  prescribed  in  detail  in  the  act.  As  a  foundation  for  the 
system,  it  is  necessary  to  have  the  title  established.  To  that  end 
a  proceeding  is  authorized  whereby  such  title  may  be  settled  and 
declared  by  a  decree  of  the  superior  court.  The  title  thus  estab- 
lished is  to  be  certified  by  the  County  Recorder,  and  the  certificate 
is  made  conclusive  evidence  of  title  in  the  person  therein  named 
as  the  owner.  The  principal  point  urged  in  opposition  to  the 
issuance  of  the  writ  is  that  the  proceeding  thus  provided  for  is 
unconstitutional,  because, 

"1.  It  would  deprive  persons  of  property  without  due  process 
of  law. 

"2.     It  would  deprive  persons  of  equal  protection  of  the  law. 

"3.  It  commits  to  the  judicial  department  of  the  state  func- 
tions which  are  not  judicial  in  character,  but  purely  administrative 
and  executive,  contrary  to  sec.  1  of  artincle  III.  of  the  state  con- 
stitution, prohibiting  one  department  of  state  from  exercising 
functions  belonging  to  another. 

"It  is  necessary  to  give  a  brief  statement  of  the  essential  fea- 
tures of  the  provision  to  establish  and  register  titles. 

"Any  person  owning  land  which  he  desires  to  bring  under  the 
operation  of  the  act,  may  avail  himself  of  this  proceeding.  He  is 
required  to  file  in  the  Superior  Court  a  verified  petition,  setting 


DECREE,  DECLARING  CONSTITUTIONAL  11 

forth  his  name,  occupation,  residence  and  post  office  address; 
whether  married  or  single,  and  if  married  the  name  and  residence 
of  the  husband  or  wife,  the  description  of  the  land,  and  a  state- 
ment of  his  estate  or  interest  in  it;  that  the  land  is  occupied  or 
unoccupied,  as  the  case  may  be,  and  if  occupied,  the  name  and 
post  office  address  of  each  occupant,  and  the  interest  or  estate 
such  occupant  has  or  claims  in  the  land ;  the  liens  and  incum- 
brances  thereon  and  easements  therein,  the  name  and  address  of 
the  holder  thereof  if  known ;  whether  or  not  any  other  person  has 
or  claims  any  estate  or  interest  of  any  character  in  the  land,  and 
the  name  and  address,  if  known,  of  every  such  person  and  the 
nature  of  the  estate  or  interest  owned  or  claimed  by  him ;  and 
the  name  and  address  of  all  the  owners  of  the  adjoining  lands,  so 
far  as  the  same  can  be  ascertained.  The  petition  must  be  accom- 
panied by  a  plat  of  a  survey  of  the  land  made  by  a  county  sur- 
veyor, or  a  licensed  surveyor,  with  a  verified  or  certified  abstract 
of  title,  made  by  some  person  or  corporation,  thereunto  authorized 
as  specifically  provided  in  the  act.  (Sec.  6).  The  court  must 
examine  and  determine  from  the  abstract  of  title,  whether  or  not 
it  shows  the  title  to  be  in  the  petitioner  as  alleged,  and  if  it  so 
determined  it  shall  thereupon  appoint  a  day  for  a  hearing  of  the 
petition.  (Sec.  12).  Notice  of  the  time  and  place  of  the  hearing 
must  be  given  by  four  weeks  publication  in  some  designated  news- 
paper, of  general  circulation.  Notice  then  must  be  served  in  the 
manner  prescribed  for  service  of  summons  in  a  civil  action,  either 
personally  or  by  publication,  as  the  facts  may  require,  upon  all 
parties  shown  by  the  petition,  or  by  the  abstract  of  title,  to  be 
interested,  and  also  upon  the  husband  or  wife  of  the  petitioner 
and  upon  the  owners  of  the  adjacent  lands.  (Sec.  13). 

"We  construe  this  provision  for  service  of  notice  to  mean  that 
the  service  to  be  thus  made  on  these  persons  must  be  personal 
service,  except  in  those  cases  wherein,  under  sections  412  and  413 
of  the  code  of  civil  procedure,  service  may  be  made  by  publication, 
and  that  service  upon  such  persons  by  publication  must  be  made 
upon  affidavit  and  order,  as  in  those  sections  provided,  and  for 
the  period  and  in  the  manner  therein  required. 

"Upon  the  hearing,  if  the  court  finds  in  accordance  with  the 
petition,  it  must  make  and  enter  a  decree  that  the  petitioner  is 
the  owner  of  the  land,  accurately  describing  it,  attaching  thereto 
a  diagram  thereof  and  setting  forth  the  particulars  of  the  liens, 
encumbrances  and  easements,  and  an  appeal  may  be  taken  there- 
upon as  in  civil  cases.  (Sec.  15). 

"The  decree  when  it  becomes  final,  is  made  conclusive  of  the 
title  and  estate  therein  declared  and  described,  against  the  rights 
of  all  persons,  known  or  unknown,  whether  named  in  the  proceed- 
ings or  not.  (Sec.  17).  A  certified  copy  of  the  decree  is  to  be  filed 
with  the  county  recorder,  who  is  described  as  "registrar/  for  the 
purpose  of  the  act,  and  upon  it  he  is  to  issue  a  certificate  of  title  to 


12  TORRENS   LAND   LAW    OF   CALIFORNIA 

the  person  named  in  the  decree  as  owner,  and  make  an  entry 
thereof  in  a  book  kept  in  his  office  for  that  purpose.  (Sec.  22,  23.). 
The  land  thereupon  becomes  'registered  land'  and  the  owner 
named  in  the  certificate  thereupon  holds  it  free  from  every  claim, 
except  those  noted  in  the  certificate.  Subsequent  transfers  of  such 
'registered  land'  are  to  be  made  and  entered  in  the  manner  pre- 
scribed in  the  act,  and  certificates  thereof  are  to  be  issued  by  the 
registrar  to  the  transferee,  which  shall  be  conclusive  evidence  of 
his  title  as  therein  stated.  Any  person  who  has  been,  or  would  be 
defrauded  by  the  decree,  and  who  has  no  actual  notice  of  the  pro- 
ceedings, may  maintain  an  action-  to  establish  his  right,  against  the 
registered  owner,  at  any  time  within  five  years  after  the  first  reg- 
istration. 

"1.  It  is  conceded  as  a  matter  of  course,  that  there  would  be 
no  want  of  due  process  of  law,  if  the  proceeding  affected  only  the 
persons  who  are  named  in  the  petition,  and  who  consequently 
must  be  served  with  notice,  either  personal,  or  by  publication,  in 
the  same  manner  as  in  the  case  of  a  summons  in  a  civil  action. 
The  objection  in  this  respect,  is  that  the  decree,  by  the  terms  of 
the  act,  will  preclude  persons  who  are  not  named,  persons  who 
really  own  the  land,  or  an  interest  therein,  but  who,  because  of  the 
fact  that  their  claim  or  their  existence  are  unknown  to  the  peti- 
tioner, are  not  named  in  the  petition,  and  who  consequently  will 
not  receive  any  notice  except  that  afforded  by  four  weeks  publica- 
tion, required  by  the  act,  and  who  may  have  no  actual  knowledge 
of  the  proceeding,  or  of  the  decree. 

"The  proceeding  is,  in  all  important  particulars,  of  similar  char- 
acter to  that  provided  by  the  act  of  1906,  known  as  the  'McEn- 
nery  Act."  (Stat.  1906,  p.  78).  In  that  act  it  was  expressly  pro- 
vided that  the  proceeding  to  establish  title  therein  authorized, 
should  be  had  against  all  person  claiming  any  interest  in,  or  lien 
on,  the  land,  whether  known  or  unknown,  and  that,  if  the  re- 
quired notices  were  given  and  served,  the  decree  should  be  con- 
clusive and  binding  on  all  persons  whether  named  or  not,  al- 
though, as  to  those  not  named  and  unknown,  the  act  required  no 
notice  except  by  publication.  In  the  case  of  the  Title  and  Docu- 
ment Restoration  Co.  v.  Kerrigan,  150  Cal.  289,  that  act  was 
attacked  as  unconstitutional  in  the  same  particulars  as  those  here 
urged  against  the  Torrens  Law,  and  it  was  declared  to  be  valid 
and  constitutional.  The  reasons  for  holding  that  act  valid  are  set 
forth  in  length  in  the  elaborate  opinion  of  Justice  Sloss,  rendered 
in  that  case.  They  are  fully  applicable  to  the  case  now  under  con- 
sideration, and  we  refer  to  that  opinion  for  a  full  answer  to  the 
objection  that  the  Torrens  law  does  not  provide  for  due  process 
of  law,  nor  afford  to  all  persons  the  equal  protection  of  the  law. 

"The  state  has  full  control  over  the  subject  of  the  mode  of 
transfers  and  establishing  titles  to  property  within  its  limits.  For 


DECREE,  DECLARING   CONSTITUTIONAL  13 

these  purposes  the  state  has  power  to  provide  a  special  process  in 
the  nature  of  a  proceeding  in  rent,  to  fix  the  status  of  the  land  and 
declare  the  nature  of  the  titles  and  interests  therein  and  the  per- 
son or  persons  in  whom  such  titles  and  interests  are  at  the  time 
vested.  It  may  do  this  whenever  it  may  be  considered  necessary 
or  likely  to  promote  the  general  welfare. 

"2.  The  proposition  that  the  proceeding  is  judicial  and  not 
administrative,  that  it  is  properly  a  matter  for  the  judicial  depart-* 
ment,  was  also  fully  considered  and  established  in  Title,  etc.,  v. 
Kerrigan,  150  Cal.  289,  and  the  reasons  there  given  apply  here. 

"The  claim  in  behalf  of  the  defendant  in  this  particular  seems 
to  be  based  on  the  theory  that  there  is,  or  may  be  no  adverse 
party  to  the  proceedings,  that  it  may  be  had  where  there  is  in 
fact  no  adverse  claim,  lien  or  incumbrance  to  or  upon  the  land, 
and  hence  that  it  is  not  adversary  in  character.  That  it  may  not 
become  adversary  in  this  sense  is  of  course  conceded.  It  would 
not  necessarily  follow  that  the  proceedings  were  not  judicial.  It 
needs  no  citation  of  authorities  to  establish  the  proposition  that 
the  power  of  a  court  to  entertain  an  action  does  not  depend  upon 
the  appearance  of  the  defendant  and  his  active  opposition  to  the 
claims  of  the  plaintiff. 

"The  contention  is  further  made  that  judicial  power  can  be 
exercised  only  to  settle  existing  disputes  and  controversies,  and 
that  if  none  exist,  the  act  of  merely  describing  and  declaring  an 
undisputed  title  is  necessarily  administrative  and  can  not  be  per- 
formed by  the  judicial  department.  This  argument  does  not  fully 
meet  the  case.  It  may  be  admitted  that  the  existence  of  contro- 
versies which  could  not  be  settled  by  the  interested  parties  was 
the  primal  cause  for  the  institution  of  courts  with  power  to  ad- 
judge between  the  parties  to  the  strife.  But  the  refinements  of 
civilized  life,  and  the  necessity  for  the  orderly  regulation  and 
determination  *  *  *  have  long  required  the  extension  of  the 
judicial  power  beyond  the  settlement  of  controversies  which  have 
actually  arisen,  so  as  to  include  the  function  of  providing  security 
against  disputes  and  claims  which  may  arise.  *  *  * 

"In  the  case  of  the  Torrens  law,  the  plan  for  a  new  method  for 
registering  and  transferring  titles  made  it  necessary  that  the 
absolute  title  should  first  be  established  and  declared.  A  status 
or  right  was  to  be  established,  declared  and  made  conclusive,  as 
the  foundation  for  subsequent  proceedings  and  transactions.  This 
was  a  sufficient  cause  for  placing  the  property  to  be  thus  affected 
within  the  jurisdiction  of  the  court  as  a  res,  the  ultimate  right 
and  title  to  which  could  be  there  adjudicated,  after  reasonable 
notice  to  all  possible  claimants  to  appear  and  assert  their  claims. 
Whether  or  not  this  is  strictly  in  exercise  of  judicial  power,  as 
originally  instituted,  it  can  not  be  denied  that  it  is  a  power  of 
the  class  which,  from  time  immemorial  has  been  committed  to, 
and  exercised  by,  the  courts. 


14  TORRENS  LAND  LAW  OF  CALIFORNIA 

"3.  The  claim  is  made,  although  not  argued,  that  by  sections 
48,  49,  55,  58,  59,  60,  61,  64,  67  and  68  of  the  act  the  registrar  is 
given  judicial  powers.  These  sections  require  the  registrar  to  note 
upon  the  duplicate  certificate  of  title  in  his  office,  the  existence 
and  general  character  of  instruments  creating  liens,  incumbrances, 
trusts,  powers  or  leases  affecting  the  land  described  in  the  certifi- 
cate. The  point  is  that  the  registrar  is  required  to  determine  the 
legal  effect  of  these  instruments,  and  that  this  is  a  judicial  func- 
tion which  can  be  given  only  to  a  judicial  officer.  There  is  no 
force  to  this  objection.  Every  administrative  officer  is  frequently 
called  upon,  in  the  discharge  of  his  duties,  to  decide  questions  of 
law  relating  thereto.  The  recorder  is  required  to  determine 
whether  an  instrument  presented  for  record  is  a  deed,  a  mortgage, 
a  lease,  a  notice  of  action,  or  what  not,  so  as  to  record  it  in  its 
proper  book.  The  sheriff  must  often  determine  for  his  own  guid- 
ance in  making  a  levy,  the  ownership  of  property.  The  clerk  must 
determine  the  nature  and  legal  effect  of  papers  filed  with  him, 
and  perform  the  appropriate  duty  respecting  them.  The  duties 
required  for  the  registrar  by  these  sections  are  of  the  same  nature. 
His  decision  in  the  matter  is  not  conclusive.  If  he  decides  wrong- 
fully and  refuses  to  perform  the  appropriate  duty  in  the  premises, 
he  may  be  compelled  to  act  properly  by  means  of  a  writ  of  man- 
of  purchasers  in  good  faith  of  land  registered  under  the  act,  and 
damus,  the  same  as  any  other  ministerial  officer  who  mistakes 
his  duty  under  the  law  and  refuse  to  perform  it. 

"4.  It  is  claimed  that  the  act  is  special,  because  it  makes 
special  provisions  regarding  the  statute  of  limitations,  the  rights 
other  matters  peculiar  to  lands  which  are  brought  within  its  pro- 
visions. We  perceive  no  merit  in  this  contention.  The  fact  that 
the  land  thus  registered  may  be  conveyed  and  transferred  by 
means  different  from  that  required  as  to  other  lands,  and  the 
necessity  for  a  special  proceeding  as  a  foundation  for  the  system, 
creates  a  separate  class  of  such  registered  lands,  and  another 
special  provision  of  law  on  the  subject,  applying  only  to  such  reg- 
istered lands,  the  owners  thereof,  or  persons  interested  therein, 
or  to  the  procedure  whereby  the  system  is  to  be  inaugurated. 

"5.  The  claim  is  made  that  the  act  violates  the  provisions  of 
Sec.  24,  of  article  4  of  the  constitution,  that  "Every  act  shall 
embrace  but  one  subject,  which  subject  shall  be  expressed  in  its 
title.'  The  provisions  of  the  act  relating  to  the  subjects  of  fel- 
onies, county  officers,  principal  and  surity,  etc.,  are  all  germain  to 
the  general  subject  there  expressed,  and  taken  together  they  com- 
pose a  part  of  the  general  scheme  and  are  appropriate  to  effect 
the  main  object  of  the  law,  and  do  not  render  the  act  unconsti- 
tutional." 


DECREE,  DECLARING  CONSTITUTIONAL  15 

In  view  of  the  foregoing  decision,  it  is  not  likely  that  any  ques- 
tion will  be  raised  as  to  the  constitutionality  of  the  present  act, 
and  it  can  therefore  be  acted  under  at  once. 

A  system  of  practice  will  gradually  be  evolved,  as  has  been 
the  case  in  other  states,  and  there  will  probably  be  a  number  of 
questions  to  be  settled  in  regard  to  operations  under  the  different 
sections  of  the  act,  for  some  of  them  are  general  in  their  char- 
acter and  not  as  definite  in  their  terms  as  in  other  States. 


16  TORRENS  LAND  LAW  OF  CALIFORNIA 


PROCEDURE  FOR  BRINGING  LAND  UNDER  THE  ACT 
FOR  REGISTRATION  OF  TITLE 

PETITION. 

The  application  for  registration  of  title  is  made  by  a  petition  to 
the  Superior  Court  of  the  State  in  and  for  the  county  where  the 
land  is  located,  except  that  when  the  land  lies  in  one  body,  partly 
in  two  or  more  counties,  the  proceedings  may  be  brought  in  either 
county.1  The  petition  will  be  filed  in  the  office  of  the  county  clerk. 

The  petition  therefore  becomes  the  basis  of  all  the  proceedings 
and  should  be  most  carefully  drawn,  to  comply  with  the  provisions 
of  the  act.  Its  requirements  are  set  forth  in  Sec.  5. 

Any  interested  persons  who  have  not  joined  in  the  petition  may 
be  served  with  notice  as  defendants,  and  so  made  parties  to  the 
proceeding.2 

Provided  also  that  all  persons  having  or  claiming  any  interest 
in  the  land  may  assent  in  writing  to  the  registration  and  need  not 
then  be  made  parties  defendant.2 

SURVEY. 

A  plat  or  plan  of  survey  of  the  land  made  by  the  county  or  a 
licensed  surveyor,  must  accompany  the  application,  unless  the 
land  is  part  of  a  city,  town  or  subdivision  of  which  a  map  or  plat 
made  and  verified,  or  an  official  map,  is  on  file  in  the  office  of  the 
recorder  and  upon  such  map  the  land  appears  hi  such  manner  that 
it  can  be  identified  thereon  by  reference,  in  which  case  the  appli- 
cation may  refer  to  such  map. 

ABSTRACT  OF  TITLE 

An  abstract  of  title  made  as  provided  by  the  act,  must  accom- 
pany the  application,  except  where  registration  is  asked  for  on 
the  ground  of  actual,  exclusive  and  adverse  possession  for  more 
than  five  years,  by  the  applicant  or  his  predecessors  in  interest, 
and  proven  to  the  satisfaction  of  the  court.8  In  which  case  an 
abstract  is  not  required. 

When  the  title  to  the  land  has  been  previously  determined  by 
a  final  decree  of  a  court  of  competent  jurisdiction,  the  abstract 
need  not  antedate  the  decree..8 

When  the  title  to  the  land  has  been  previously  insured  by  a 
corporation  transacting  business  in  insuring  titles  to  real  estate 
and  a  policy  of  insurance  has  been  issued  such  policy  may  be  made 
the  starting  point  of  the  abstract.8 

iSec.  5 

12. 
Sec.  6. 


PROCEDURE  17 

EXAMINER  OF  TITLES. 

When  an  abstract  is  filed,  the  court  will  itself  examine  it  or 
may  refer  it  to  an  examiner  of  titles,  to  be  appointed  by  the  court.4 

NOTICE  OF  FILING  OF  PETITION. 

If  it  appears  to  the  court  from  its  own  examination  of  the 
abstract  of  title,  or  from  the  report  of  the  examiner,  or  from  the 
petition  alone,  where  no  abstract  is  required,  that  the  title  to  the 
land  is  substantially  as  alleged  in  the  petition,  the  court  will  order 
notice  to  be  given  of  the  filing  of  the  petition.5 

When  notice  is  ordered  it  shall  be  issued  and  served  according 
to  the  directions  of  Sec.  12.  In  all  cases  publication  of  the  notice 
must  be  made  in  a  newspaper  of  general  circulation  published  in 
the  county,  to  be  designated  by  the  court,  for  four  consecutive 
weeks. 

In  all  cases  assents  in  writing  may  be  filed  by  the  interested 
parties  in  the  form  provided,  and  such  persons  need  not  be  served 
with  notice.8  The  applicant  should  therefore  obtain  all  assents 
possible  from  interested  parties  and  from  adjoining  land  owners, 
to  save  time  and  expense  in  making  service.  The  assents  may  be 
attached  to  the  petition  or  filed  separately. 

HEARING  OF  THE  APPLICATION. 

After  all  persons  interested  have  been  served  and  the  time  for 
appearance  has  expired,  the  case  will  be  set  down  for  hearing  on 
like  notice  as  in  other  civil  actions,  and  the  court  will  proceed  to 
hear  the  case  upon  all  the  testimony  and  evidence  offered  and  the 
objections  made,  and  determine  the  title  to  all  the  land  described 
in  the  petition,  and  will  make  and  enter  a  decree  confirming  the 
title  of  the  person  found  to  be  the  owner  of  the  land  or  any  part 
of  it,  and  order  the  registrar  to  issue  a  certificate  of  title  therefor.7 

DECREE  AND  CERTIFICATE. 

Immediately  upon  the  filing  with  the  registrar  of  a  certified 
copy  of  the  decree  he  will  make  an  entry  in  a  book  to  be  kept  by 
him,8  to  be  known  as  the  "Register  of  Titles,"  and  this  entry 
constitutes  the  original  certificate  of  title.  He  will  also  make  a 
copy  of  this  entry  and  deliver  it  to  the  owner  of  the  land ;  this  is 
the  duplicate  certificate.9  This  constitutes  the  registration. 

TRANSFERS — AFTER  REGISTRATION. 

From  the  time  the  first  certificate  is  issued  all  dealings  with 
the  land  are  completed  by  filing  with  the  registrar  the  instrument 

«See  Sees.  11,  18,  19. 

"Sec.  11. 

«Sec.  12. 

TSec.  14. 

sSec.  29. 

9Sec.  23. 


18  TORRENS  LAND  LAW  OF  CALIFORNIA 

of  transfer  or  creating  an  incumbrance,  accompanied  by  the  own- 
er's duplicate  certificate.10 

Like  forms  of  deeds,  mortgages,  leases  and  other  instruments 
as  used  in  other  cases  are  used  in  dealing  with  registered  land11 
But  the  act  does  not  provide  for  the  same  being  recorded  as  in 
other  cases,  but  only  that  they  be  filed  with  the  registrar  and  re- 
tained in  his  office.12  But  an  instrument  duly  acknowledged,  in- 
dorsed on  the  duplicate  certificate  of  title,  in  the  form  given,  shall 
be  sufficient  to  transfer  the  property.11 

Except  in  this  last  case  a  new  certificate  will  be  issued  on 
every  change  of  title. 

MORTGAGES  AND  LIENS 

and  other  instruments,  less  than  a  transfer,  are  noted  on  the 
original  and  duplicate  certificates.18 

The  cases  of  trusts,  judgments,  homestead  and  community 
property,  tax  sales  and  other  matters  are  all  treated  of  under  their 
appropriate  heads,  and  need  not  be  repeated  here. 

ASSURANCE  FUND. 

An  important  feature  of  the  Torrens  system  is  the  Assurance 
fund,  for  the  reimbursement  of  loss  to  parties  which  may  be  sus- 
tained by  the  misfeasance  or  negligence  of  a  registration  officer, 
or  by  reason  of  fraud  on  the  part  of  some  one  from  whom  title 
has  been  derived.  The  fund  is  available  by  the  person  who  is 
deprived,  without  fraud  or  negligence  on  his  part,  of  any  interest 
or  estate  in  land  and  who  "is  precluded  from  recovering  such  in- 
terest or  estate."14  This  provision  is  evidently  made  in  recognition 
of  the  fact  that  the  title  of  the  holder  of  the  certificate  of  registra- 
tion is  indefeasible  and  the  fund  is  intended  to  reimburse  the 
person  who  has  lost  it.  The  innocent  holder  of  the  estate  is  secure 
in  his  possession,  no  matter  what  fraud  or  negligence  may  have 
preceded  his  acquisition. 

The  practical  working  of  this  provision  is  shown  by  the  experi- 
ence of  other  States.  On  the  first  day  of  January,  1914,  the  assur- 
ance fund  in  the  hands  of  the  State  Treasurer  of  Massachusetts 
amounted  to  $225,442.00  and  but  one  claim  and  that  a  small  one, 
against  it  had  been  made  since  the  law  went  into  operation  in 
1898. 


"Sec.  48. 
nSec.  53. 
"Sec.  51. 
"Sees.  7,  34. 
"Sec.  105,  Sub.  2. 


LAND  TITLE  LAW 

SECTIONS  AND  FORMS 

1.     Registrars  and  deputies  19 

5.  Land — Owners — petition  20 

(1)  Petition  for  registration 24 

(2)  Petiton  for  registration — Personal  form  25 

(3)  General  petition  for  registration 26 

6.  Plat — Survey — Abstract — Adverse  possession  31 

(4)  Order  for  survey 36 

(5)  Same,  to  determine  line  of  public  way 37 

(6)  Order  that  abstract  be  frunished  when,  etc 37 

(7)  Bond  of  persons  making  abstracts  aproved 37 

(8)  Order  for  increase  in  amount  of  bond 38 

7.  Fee  to  be  first  registered „ 38 

8.  First  registration  of  a  tax  title 38 

9.  9.     Amendment  of  application  39 

(9)  Order  for  amended  petition 39 

(10)  Same  on  motion  of  applicant 39 

10.  Lis  pendens  40 

11.  Order  for  notice  of  filing  petition 40 

(11)  Order  that  notice  be  given 41 

(12)  Report  of  examiner  approved  and  notice  ordered 41 

(13)  Order  refusing  notice  and  dismissing  petition 42 

(14)  Same  on  report  of  examiner  of  titles 42 

12.  Notice  and  service  thereof 42 

(15)  Notice  of  filing  of  petition 44 

(16)  Publication  of  notice  approved 45 

(17)  Affidavit  of  service  of  notice  by  other  than  sheriff 46 

(18)  Same — of   service   by   mail 46 

(19)  Answer  objecting  to  registration 46 

(20)  Assent   to   registration 47 

13.  Guardian  ad  litem  47 

(21)  Appointment  of  guardian  ad  litem  48 

14.  Hearing  of  pettion  48 

15.  Decree  of  registration 49 

(22)  Decree  for  registration 50 

16.  Effect  of  decree 53 

17.  Registration  in  other  proceedings 54 

(23)  Application  for  notice,  etc 55 

(24)  Order  that  notice  of  intention  to  include  registration 

be  given  55 

(25)  Notice  of  intention  to  include  registration,  etc 55 

18.  Abstract  referred  to  examiner  of  titles 56 

(26)  Order  referring  case  to  examiner  of  titles 56 

(27)  Order  sending  case  to  referee  to  report  facts 57 

19.  Report  of  examiner 57 

(28)  Report  of  examiner  of  titles 58 

(29)  Report    approved    60 

(30)  Report  considered  and  further  proof  ordered 60 

(1) 


SECTIONS   AND   FORMS 

20.  Application  may  be  withdrawn 60 

(31)  Request  for  withdrawal  of  application 61 

(32)  Allowing  application  to  be  withdrawn. 61 

21.  On  death  or  disability  of  applicant  61 

(33)  On  death,  etc.,  representative  made  party 61 

(34)  On  transfer  of  Interest,  action  continued,  etc 62 

(35)  On  transfer  of  Interest,  transferee  substituted 62 

22.  Registration  and  certificate — Delivery  of  duplicate 62 

Form  of  book  for  receipts 62 

23.  Certificate  of  title  63 

(36)  Certificate  of  title — Form 64 

24.  Form  of  certificate. 65 

25.  Tenants  in  common 66 

26.  Certificates  exchanged  _..  66 

(37)  Memorial  on  cancelled  certificate  when  one  for  several  66 

(38)  Memorial  when  several  issued  for  one 66 

27.  On  loss  of  duplicate _ 67 

(39)  Application  for  certified  copy  of  certificate 67 

(40)  Order  granting  request,  without  notice 67 

(41)  Notice  of  application  ordered 68 

(42)  Order  granting  request  after  hearing 68 

(43)  Order  for  certified  copy  to  be  used  as  evidence 68 

28.  Correction  or  change  in  certificate 68 

(44)  Application  for  change  of  name  in  certificate 68 

(45)  Order  granting  application — without  notice 69 

(46)  Order  granting— after  hearing 69 

29.  "Register  of  titles" 70 

30.  Receipt  for  duplicate  certificate 70 

31.  When  land  deemed  to  be  registered 70 

32.  When  transfer  deemed  to  be  registered 70 

33.  Complaint  against  registrar  71 

34.  Registered  owner  holds  subject  to  what  estates 71 

35.  Adverse  title  not  acquired  by  possession 72 

36.  Transferee  need  not  inquire  into  previous  registration...  72 

37.  Fraud  and  forgery 72 

38.  Deed  forged,  ets _..  72 

39.  Title  not  affected  by  unregistered  estate 73 

40.  Certificate  conclusive  evidence 73 

42.  Register  received  as  evidence 73 

43.  Memorial  carried  forward 73 

44.  Dealings  with  land  after  registration 73 

45.  Time  limitation  for  adverse  actions... 74 

46.  Registration  in  probate  proceedings 74 

47.  Notations  on  instruments  filed - 75 

(47)  Notations  on  back  of  deed  transferring  registered  land  76 

48.  Transfer  of  registered  land 76 

(48)  Memorial  on  certificate  cancelled  by  transfer 77 

49.  Transfer  of  part 77 

(49)  Endorsement  on  certificate  of  subdivided  tract,  etc. .  78 

50.  Date  of  filing  marked  on  instrument 78 

51.  Instruments  retained  in  registrar's  office 78 

(ii) 


SECTIONS   AND   FORMS 

52.  Certified  copies  . 79 

53.  Forms  of  instruments 79 

54.  Name,  etc.,  of  grantee 79 

(50)  Notice  of  change  of  address  80 

(51)  Certificate  of  notice  and  process 80 

(52)  Order  for  further  or  different  notice 80 

55.  Instruments  to  take  effect  as  contracts 80 

56.  When  transfer  is  subject  to  tax  sale 81 

57.  Community  property _ 81 

58.  Affidavit  of  transferee 81 

(53)  Affidavit  of  transferee 82 

(54)  Affidavit  of  executor,  etc.,  transferee 82 

59.  Mortgages,  etc.,  on  registered  land 82 

60.  Memorial  of,  or  new  certificate  binding  on  all 82 

(56)  Order  allowing  memorandum,  etc,  without  duplicate 
certificate    83 

61.  Instruments  filed  in  duplicate 83 

62.  Certified  copies  of  instruments 84 

63.  Assignment  of  a  charge 84 

(57)  Memorial  of  assignment  of  charge 84 

(57a)  Same,  of  part  of  charge 84 

64.  Release  of  a  charge _ 84 

(57b)  Memorial  of  release  of  whole  or  part  of  charge 85 

65.  Charges  enforced  as  in  other  cases 85 

(58)  Notice  of  pendency  of  suit  to  foreclose,  etc 85 

66.  Power  of  attorney 85 

67.  Deeds  in  trust — how  noted  in  certificate 86 

68.  Trustee  with  power  of  sale 8t> 

69.  Trustee  without  power  of  sale 86 

70.  Trustee  under  will 86 

71.  Distribution,  etc.,  of  registered  land  in  other  proceed- 
ings made  as  in  othercases 86 

72.  Order  for  certificate  or  memorial   87 

(59)  Order  in  decree  for  transfer,  etc.,  that  certificate  issue  87 

73.  Certified  copy  of  decree  filed 87 

74.  Sales  by  executors,  etc.,  confirmed 87 

(60)  Order  for  certificate  when  sale  confirmed 88 

75.  When  executor  given  power  of  sale  by  will 88 

(61)  Order  that  words  "with  power  of  sale"  be  registered. .  88 

(62)  Order  in  decree  confirming,  for  certificate 88 

76.  Certificate  or  memorial  conclusive  evidence 88 

77.  Tax  sale  of  registered  land — Notice  by  purchaser 88 

(63)  Notice  of  purchase  of 90 

(64)  Notice  that  registered  land  has  been  sold  to  State 90 

78.  Tax  deed  filed 90 

(65)  Application  by  tax  purchaser  for  decree 91 

79.  To  whom  notice  sent 91 

(66)  Order  that  notice  be  given  of  tax  purchasers  application  92 

(67)  Notice  of  application  for  decree 92 

80.  Decree  and  certificate  on  hearing 93 

(68)  Decree  showing  title  invested  in  holder  of  tax  deed 93 

(iii) 


SECTIONS   AND   FORMS 

81.  When  State  or  municipality  is  purchaser 93 

82.  How  notice  required  in  Sec.  79  served 94 

83.  Redemption  from  tax  sale 94 

84.  Partition  of  registered  lands — Proof  as  to  parties 94 

85.  Lands  allotted  by  commissioners 94 

86.  Land  sold  in  partition  proceedings 94 

(69)  Certificate  of  officer  making  sale 95 

87.  Lien  on  undivided  interest  attaches  to  what 95 

88.  Sale  of  registered  land  to  satisfy  judgment 95 

89.  Lis  Pendens  _..  95 

90.  When  suit,  etc.,  disposed  of 95 

91.  When  judgment  becomes  a  lien  on  registered  land 96 

92.  Levy  on  registered  land  certified  to  registrar 96 

(70)  Certificate  of  levy 96 

93.  Mechanic's  lien  97 

94.  Ordinance  for  public  improvement 97 

(71)  Notice  of  ordinance  to  lay  out  or  improve  street 97 

(72)  Notice  of  repeal  of  ordinance 97 

(73)  Notice  that  lien  under  ordinance  is  satisfied 98 

95.  When  lien  deemed  to  affect  title  of  registered  land 98 

96.  Certificate  of  clerk  of  suit,  etc.,  to  be  filed 98 

(74)  Certificate  of  clerk  of  suit  dismissed  or  judgment  satis- 
fied      98 

(75)  Certificate  of  sheriff  of  release  of  levy,  etc 98 

97.  Alterations,  etc.,  of  certificate  or  memorandum 99 

98.  Application  for  order  correcting,  etc 99 

(76)  Petition  by  registered  owner  for  correction  or  altera- 
tion of  certificate 100 

(77)  Order  that   summons   issue 100 

(78)  Form  of  summons 101 

(79)  Order  for  correction,  by  consent 101 

(80)  Order  for  correction  on  hearing 101 

99.  Form  of  memorial  referred  to  Court 102 

(81)  Form  of  memorial  referred  to  Court  on  registrar's  cer- 
tificate      102 

(82)  Same  on  suggestion  of  party 102 

(83)  Order  prescribing  form  of  memorial 102 

100.  Fees  under  this  act 103 

101.  Right  of  eminent  domain  not  affected 104 

102.  Property  indices 104 

103.  Name  indices  1 05 

104.  Partition  of  registered  land _ 105 

105.  Torrens  Title  Assurance  fund 105 

106.  In  case  of  fraud 107 

107.  Appeal 107 

(84)  Notice  of  appeal  given  to  registrar 107 

108.  Deputy  recorders  and  registrars 107 

109.  Subdividing  registered  land 108 

110.  Permanency  of  documents 108 

111.  Fraud  and  forgery  how  punished 108 

115.  Act  construed  liberally 109 

(iv) 


SEC.    4]  REGISTRARS    AND    DEPUTIES.  19 


LAND  TITLE  LAW 

As  enacted  by  the  People  of  the  State  of  California  at  the  gen- 
eral election  held  November  3,  1914. 

An  act  to  amend  an  act  entitled  "An  act  for  the  certification  of 
land  titles  and  the  simplification  of  the  transfer  of  real  estate," 
approved  March  17,  1897. 

The  people  of  the  State  of  California  do  enact  as  follows : 

An  act  entitled  "An  act  for  the  certification  of  land  titles  and 
the  simplification  of  the  transfer  of  real  estate,"  approved  March 
17,  1897,  is  hereby  amended  to  read  as  follows: 

REGISTRARS  AND  DEPUTIES. 

Section  1.  Recorders  and  ex  officio  recorders  in  the  several 
counties  of  this  state  shall  be  registrars  of  titles  in  their  respec- 
tive counties,  and  their  deputies  shall  be  deputy  registrars  (a). 
All  laws  relative  to  recorders  and  their  deputies,  including  their 
compensation,  clerk  hire,  and  expenses,  shall  extend  to  registrars 
and  their  deputies,  so  far  as  the  same  may  be  applicable,  except  as 
otherwise  provided  in  this  act  (b).  Registrars  of  titles  shall  be 
county  officers  within  the  meaning  of  the  laws  of  this  state. 

Sec.  2.  The  official  bonds  now  required  by  law  to  be  given  by 
recorders  before  entering  upon  the  discharge  of  their  duties,  shall 
also  apply  to  and  cover  the  faithful  discharge  of  their  duties  as 
registrars,  and  of  their  deputies,  whether  such  additional  condi- 
tion be  specifically  provided  for  in  such  bonds  or  not;  provided, 
however,  that  recovery  on  such  bond  be  had  only  for  damages 
sustained  through  the  gross  or  wilful  negligence  or  gross  or  wil- 
ful neglect  of  duty  or  gross  or  wilful  mismanagement  on  the  part 
of  such  recorder  or  registrar  or  any  of  his  deputies. 

Sec.  3.  Deputies  may  perform  any  and  all  duties  of  the  reg- 
istrar, in  the  name  of  the  registrar,  and  the  acts  of  such  deputies 
shall  be  held  to  be  the  acts  of  the  registrar. 

Sec.  4.  Registrars  and  deputy  registrars  are  prohibited  from 
practicing  law,  or  acting  as  attorneys  or  counselors  at  law,  or 
having  as  a  partner  a  lawyer  or  any  one  who  acts  as  such,  or 
from  acting  as  searchers  of  title  under  this  act,  excepting  only 
such  deputies  as  may  be  appointed  as  attorneys  pursuant  to  the 
provisions  of  section  108  of  this  act. 


20  TORRENS  LAND  LAW  OF  CALIFORNIA.  [SEC.  5- 

LAND — OWNERS — PETITION. 

Sec.  5.    All  lands15  may  be  brought  under  the  operation  of 
this  act  by  the  owner,16or  owners,17  of  any  estate  or  interest  therein 


i»The  Land  Court  may  register  the  title  to  an  estate  in  fee  under 
a  Rail  Road  location,  although  the  rights  of  the  rail-road  corporation, 
assuming  them  to  have  been  acquired  by  eminent  domain,  are  sub- 
stantially permanent  and  practically  exclusive  so  long  as  the  land  is 
used  for  the  purpose  of  a  rail-road.  Battelle  vs.  N.  Y.,  N.  H.  and  H.  R. 
R.  R.,  211  Mass.  442. 

Title  to  certain  land  which  was  procured  by  fraudulent  and  false 
representations,  could  not  be  registered  against  the  objection  of  the 
person  from  whom  the  title  was  procured,  because  such  owner  has  a 
right  to  avoid  the  deed  as  procured  from  her  by  false  representations. 
Robinson  vs.  Richards,  209  Mass.  295. 

ieOwner — Record  title. 

The  Torrens  act  of  Minnesota  provides,  as  does  the  California  act, 
that  the  "owner"  may  have  his  title  registered,  etc.  Held,  that  any 
owner  of  land  whether  his  title  be  of  record  in  the  office  of  the  re- 
corder of  deeds  or  not,  may  maintain  proceedings  to  register  his  title 
under  the  act.  National  Bond  and  Security  Company  vs.  Alderson,  99 
Minn.  137. 

The  contention  that  the  act  contemplates  registration  only,  at 
the  instance  of  a  fee  title  owner  in  possession,  and  not  by  an  "apparent 
owner,"  who  is  not  in  possession,  we  think  can  not  prevail.  The  pur- 
pose of  the  statute  is  to  provide  a  speedy  and  sure  remedy  to  clear  up 
title  to  land. 

The  title  provided  is  not  a  substitute  for  an  action  of  ejectment  and 
a  successful  applicant  may  have  to  resort  to  ejectment  to  obtain  pos- 
session. The  statute  furthermore  in  several  places  makes  provision 
looking  to  cases  where  the  land  is  occupied  by  another  than  the  appli- 
cant. Nor  can  we  sustain  the  contention  that  the  applicant's  title  must 
be  settled  before  he  can  apply.  The  very  purpose  of  the  act  is  to  settle 
the  title.  Peters  vs.  City  of  Duluth,  119  Minn.  96. 

Lack  of  record  title  not  a  bar  to  registration.  Browning,  Petitioner. 
Mass.  Land  Court  Decisions,  5. 

What  lands  may  the  owner  include  in  one  registration? 

Can  several  pieces  of  land  belonging  to  the  same  owner,  contiguous, 
or  not  contiguous,  not  derived  from  the  same  source,  be  registered  in 
one  proceeding? 

The  provisions  of  the  California  statute  in  regard  to  such  questions 
are  not  as  specific  as  in  the  Massachusetts  and  Illinois  acts.  But  there 
seems  to  be  no  objection  to  an  affirmative  answer  to  the  foregoing 
question.  Sec.  11  refers  to  one  or  more  abstracts  being  presented  with 
the  petition,  and  of  course  abstracts  would  be  required  for  each  piece 
of  land,  in  cases  where  abstracts  are  required. 

i7What  owners  can  unite  in  one  registration   proceeding? 

Can  several  persons  owning  in  severalty  different  pieces  of  land 
unite  and  ask  registration  of  all  the  pieces  in  one  proceeding? 

It  would  appear  that  an  affirmative  answer  can  be  given  to  this  from 
the  provisions  of  this  Section  5,  that  "if  the  application  is  by  more  than 
one  person,  any  one  of  whom  claims  title  in  severalty  to  any  part  of 
the  land  described  in  the  petition,  the  particular  part  of  the  land  to 
which  each  petitioner  severally  claims  title"  must  be  set  forth  in  the 
petition. 

Also  Sec.  14  provides  that  the  court  "shall  proceed  to  determine  the 
title  to  all  the  land  described  in  the  petition  and  of  all  persons  who 
may  have  any  interest  therein  or  in  any  part  thereof,"  and  Sec.  15 
provides  that  upon  the  decree  being  filed  with  the  registrar,  he  "shall 


-5.]  LANDS — OWNERS.  21 

whether  legal  or  equitable.18  (other  than  an  undivided  share  or  an 
easement)  by  filing  with  the  county  clerk  his  or  her  or  their  veri- 
fied petition  (1-2-3)  to  the  superior  court  of  the  county  within 
which  such  land  is  situated,  which  petition  shall  set  forth  the  fol- 
lowing facts,  to  wit: 

(a)  The  full  name,  occupation,  residence,  and  post-office  ad- 
dress of  the  applicant  or  applicants,  and  where  any  applicant  ap- 
pears by  any  representative  because  of  any  disability,  also,  the 
full  name,  occupation,  residence  and  post-office  address  of  the 
person  so  representing  the  applicant  and  the  reasons  for  his  so 
acting;  (ft)  if  the  application  is  by  a  corporation  19  its  name,  when 
and  where  incorporated,  its  principal  place,  of  business  and  the 
names  and  post-office  addresses  of  its  president  and  secretary, 
or  if  none,  its  executive  officers;  (c)  whether  or  not  the  applicant 
is  married  and  if  married,  the  full  name  and  residence  of  the  hus- 
band or  wife ;  and  if  unmarried,  whether  he  or  she  has  been  mar- 
ried, and  if  so,  how  the  marriage  relation  terminated,  and  if  the 
marriage  relation  was  terminated  by  annulment  or  divorce,  where 
and  by  what  court;  (d)  that  each  of  the  applicants  is  of  the  full 
age  of  twenty-one  years  and  free  from  any  disability,  or  if  a 

thereupon  issue  a  cretificate  of  title  to  each  person  declared  by  said 
decree  to  be  the  owner  of  any  parcel  of  land  in  severally." 

"What  interest  must  the  applicant  have  in  the  land? 

The  limitation  in  Sec.  5  sounds  very  broad,  but  we  find  that  no 
provision  is  made  for  the  initial  registration  of  a  lesser  estate  than  a 
fee  simple;  and  by  Sec.  7,  no  lesser  estate  shall  be  registered  unless 
the  fee  simple  to  the  same  land  shall  be  first  registered.  Then  after 
such  registration  the  lesser  estate  shall  be  noted  upon  the  certificate  of 
title.  It  therefore  appears  that  only  the  owner  of  a  title  in  fee  can  ask 
for  initial  registration. 

Under  the  same  provision  as  ours,  in  the  Illinois  act,  HELD,  That  a 
life  estate  can  not  be  registered  unless  the  fee  simple  to  the  same  land 
has  first  been  registered.    Cowan  vs.  Glos,  255  111.  377. 
TITLE  MUST  BE  GOOD  AS  AGAINST  THE  WORLD. 

Evidence  establishing  the  title  as  against  the  world  is  essential  to 
warrant  a  decree  awarding  initial  registration  of  a  title.  Glos  vs.  King- 
man,  207  111.  26.  Glos  vs.  Bragdon,  229  111.  223.  Waugh  vs.  Glos,  246  111. 
604.  Glos  vs.  Cesna,  207  111.  69. 

An  applicant  establishing  title  in  himself  need  not  show  affirma- 
tively, invalidity  of  defendant's  claim  of  title;  burden  was  on  a  party 
claiming  a  title  by  tax  deed.  Glos  vs.  Hoban,  212  111.  222.  Glos  vs. 
Holberg,  220  111.  167. 

The  title  to  be  established  may  be  shown  by  the  production  of  deeds 
forming  a  chain  of  title  from  the  government,  or  it  may  be  shown  by 
prescription  or  limitation,  as  provided  for  by  Sec.  6  (c),  and  in  the 
code  of  civil  procedure. 

As  the  latter  method  does  not  require  an  abstract  of  title  to  be  fur- 
nished, thus  materially  reducing  the  expense,  it  would  seem  that  it 
will  be  very  generally  used  for  establishing  title. 

loWhere  the  application  for  registration  is  filed  by  a  corporation 
Its  corporate  existence  can  not  be  questioned  without  a  specific  de- 
nial.   Unless  the  corporate  existence  of  the  applicant  is  thus  put  in 
issue  by  the  answer  it  need  not  be  proved. 
Gage  vs.  Consumers  E.  L.  Co.,  194  111.,  30. 


22  TORREN'S  LAND  LAW  OF  CALIFORNIA.  [SEC.  5- 

minor  or  under  disability,  his  age  and  the  nature  of  such  disa- 
bility; (e)  a  description  of  the  land;  (f)  the  value  at  which  the 
land  and  permanent  improvements,  if  any,  were  assessed  on  the 
last  assessment  for  county  taxation;  (g)  and  if  the  application 
is  by  more  than  one  person,  any  one  of  whom  claims  title  in  sev- 
eralty  to  any  part  of  the  land  described  in  the  petition,  the  par- 
ticular part  of  the  land  to  which  each  petitioner  severally  claims 
title;  (/i)  a  statement  of  the  estate  or  interest  which  each  appli- 
cant has  or  claims  and  whether  or  not  the  same  is  community 
property,20  (t)  or  is  subject  to  a  homestead,21  (/)  or  to  any  ease- 
ment,22 lien  or  incumbrance  and  if  so  the  name  and  post-office 
address,  if  known23  of  each  holder  thereof,  the  nature  and  the 
amount  of  the  same,  and  if  recorded,  the  book  and  page  of  the 
record;  (k)  a  statement  of  whether  or  not  the  land  is  occupied24 


2<>Separate  and  community  property  are  defined  by  the  civil  code  as 
follows: 

Sees.  162  and  163,  Civil  Code  of  Cal.  All  property  owned  by  the 
husband  (or  wife)  before  marriage  and  that  acquired  afterward  by 
gift,  bequest,  devise  or  descent,  with  the  rents,  Issues  and  profits 
thereof  is  his  (or  her)  separate  property. 

Sec.  164.  All  property  acquired  after  marriage  by  either  husband 
or  wife  is  community  property;  but  whenever  any  property  is  con- 
veyed to  a  married  woman  by  an  instrument  in  writing,  the  presump- 
tion is  that  the  title  thereby  vested  in  her  as  her  separate  property. 

2iHomestead  property  is  defined  by  the  civil  code  as  follows: 

Sec.  1237,  Civil  Code  of  California.  Homestead  consists  of  the 
dwelling  house  in  which  the  claimant  resides,  and  the  land  on  which 
the  same  is  situated,  selected  as  in  this  title  provided. 

Sec.  1262.  In  order  to  select  a  homestead,  the  husband  or  other 
head  of  the  family  *  *  *  *  must  execute  and  acknowledge  *  *  *  *  a  dec- 
laration of  homestead  and  file  the  same  for  record. 

Sec.  1264.  The  declaration  must  be  recorded  in  the  office  of  the 
Recorder  of  the  county  in  which  the  land  is  situated. 

Sec.  1265.  From  and  after  the  time  the  declaration  is  filed  for 
record  the  premises  therein  described  constitute  a  homestead. 

Sec.  1266  makes  a  similar  provision  as  Sec.  1262  for  selection  by 
any  person  other  than  the  head  of  a  family. 

22The  complaint  properly  alleged  the  existence  of  easements  on 
each  side  of  plaintiff's  property  consisting  of  the  right  to  maintain 
party  walls,  as  showing  the  adjoining  owner's  interest  in  plaintiff's 
property  to  have  a  similar  interest  therein.  Duffy  vs.  Rodriguez,  124 
N.  Y.  S.,  529. 

23When,  in  proceedings  under  the  Torrens  act  to  register  title, 
the  applicant  fails  to  disclose  to  the  court  the  names  of  persons  known 
to  him  to  have  an  interest  in  or  lien  upon  the  property,  and  such  par- 
ties are  not  named  as  parties  to  the  proceedings  or  served  with  sum- 
mons, and  do  not  have  actual  notice  of  the  proceeding,  a  judgment 
rendered  thereon  is  not  binding  upon  such  persons.  Riley  vs.  Pearson, 
120  Minn.,  210. 

All  claimants  known  to  the  applicant,  either  from  the  report  of  the 
Examiner,  or  from  other  sources,  must  be  made  defendants.  Baart  vs. 
Martin,  99  Minn..  197. 

2*In  the  absence  of  proof  of  her  allegation  that  the  premises  are 
unoccupied,  an  applicant  is  not  entitled  to  registration  of  title;  even 
though  she  introduces  in  evidence  an  abstract  showing  title  in  her  by 


-5.]  PETITION.  23 

and  if  so,  the  full  name  and  post-office  address  of  each  occupant 
and  what  interest  he  has  or  claims;  (/)  a  statement  of  any  other 
person  who  has  any  estate  or  claims  any  interest  in  the  or  any 
part  of  the  land,  in  law  or  equity,  in  possession,  remainder,  rever- 
sion or  expectancy,25  and  the  names  and  post-office  addresses,  if 
known,  of  every  such  person ;  (m)  together  with  the  names  and 
post-office  addresses  of  all  the  owners  of  adjoining  lands,  so  far 
as  the  same  can  be  ascertained  upon  diligent  inquiry,  (n)  If 
the  application  is  by  a  husband  or  wife  and  the  property  is 
community  property  or  subject  to  a  homestead,  both  spouses  must 
join  in  the  application  ;  (0)  persons  who  collectively  claim  to  own 
the  entire  legal  estate  in  fee  simple  to  the  or  any  part  of  the  land 
may  join  in  the  petition ;  (/>)  a  corporation  may  apply  by  its  duly 
appointed  agent;  (q)  the  estate  of  a  deceased  person  by  the 
administrator  or  executor ;  (r)  and  a  minor  or  other  person  under 
disability  by  his  legally  appointed  guardian,  but  the  person  in 
whose  behalf  the  application  is  made  shall  be  named  as  applicant, 
(j)  Land  constituting  a  single  parcel  and  lying  partly  in  two  or 
more  counties  may  be  included  in  one  application,  which  may  be 
made  in  either  county  in  which  the  land  lies,  but  the  certificate 
issued  therefor  must  be  filed  with  the  registrars  of  all  the  coun- 
ties within  which  such  land  is  situate. 

PETITION — 

The  caption  here  given  is  not  really  necessary,  and  is  not  used 
in  the  forms  given  in  either  the  Massachusetts  or  Illinois  act; 
and  is  not  recommended  by  some  attorneys  in  California,  on  the 
ground  that  the  proceeding  is  a  petition  to  the  Court  and  not  an 
adversary  one.  But  the  term  "defendant"  is  used  in  the  act 
itself,  and  as  it  is  a  civil  action,  and  may  become  adversary  in 
character,  and  as  it  is  very  convenient  to  have  all  parties  to  the 
proceeding  conveniently  shown,  and  because  there  is  no  harm 
done  in  using  the  caption  of  a  regular  civil  action,  it  appears 
good  practice  to  use  it.  It  is  generally  used  in  Los  Angeles 
County. 

a  chain  of  title  from  the  Government,  with  proof  that  the  abstract  was 
made  in  the  ordinary  course  of  business,  by  a  maker  of  abstracts,  and 
no  proof  is  offered  by  defendants  except  to  show  payment  of  taxes. 
Brooke  vs.  Glos,  243  111.,  392. 

If  the  applicant  alleges  that  the  land  is  not  occupied  he  should 
prove  the  fact,  as  the  allegation  Is  not  a  negative  one  which  requires 
no  proof,  nor  is  the  application  itself  evidence  of  the  fact.  Jackson  vs. 
Glos,  243  111.,  280. 

An  allegation  in  the  application  to  register  title  that  the  premises 
are  occupied  by  the  applicant  is  a  material  one  and  must  be  proved; 
and  it  is  error  to  decree  registration  If  the  proof  falls  to  identify  the 
premises  occupied  by  the  applicant  as  the  premises  described  in  the 
application.  Mlhalik  vs.  Glos,  247  111.,  597. 

zsPetitioner  is  required  to  set  forth  not  only  interests  which  he 
admits,  but  also  adverse  claims  though  denied  by  him.  Tyler  vs. 
Judges,  175  Mass.,  71. 


24  TORREN'S  LAND  LAW  OF  CALIFORNIA,  [SEC.  5- 

1.     (Sec.  5.     )     Petition  for  registration. 

In  the  Superior  Court     of     the 
State  of  California,  in  and  for 

the  County  of 

D.  B. 

Petitioner. 

vs.  No- 

Petition  for  registration  of  title 


C.  H.,  D.  M.  and  A.  D., 
Defendants. 


to  land. 


To  the  Superior  Court  of County : 

The  petitioner  herein  makes  application  to  have  the  land  here- 
inafter described  brought  under  the  operation  of  the  act  for  the 
certification  of  land  titles,  etc.,  enacted  by  the  people  of  the  State 
of  California  at  the  general  election  held  November  3,  1914,  and 
sets  forth  the  following  facts : 

I. 

The  full  name  of  the  petitioner  is  D.  B. ;  he  is  of  the  full  age 
of  twenty-one  years  and  is  not  under  any  legal  disability. 

Continue  as  in  one  of  the  applications  in  No.  3.  After  Item  IX 
add: 

Said  land  is  not  subject  to  any  other  lien,  easement,  or  incum- 
brance,  nor  has  any  other  person  or  corporation  any  estate, 
claim,  or  interest  therein,  or  in  any  part  thereof,  in  possession, 
reversion,  or  expectancy  to  his  knowledge,  and  as  he  verily  be- 
lieves, except  as  herein  set  forth. 

At  conclusion  let  the  prayer  be  as  follows: 

Wherefore  the  petitioner,  D.  B.,  prays  the  Court  that  the  land 
herein  described  may  be  brought  under  the  operation  of  the 
act  above  named  and  for  a  decree  declaring  him  to  be  the  owner 
in  fee  of,25  and  confirming  his  title  to,  said  land  and  ordering  the 
registration  thereof  as  provided  by  said  act,  and  for  such  other 
relief  as  shall  be  according  to  law  and  equity. 


Attorney  for  Petitioner. 
State  of  California, 

County  of 

D.  B.  being  duly  sworn,  deposes  and  says  that  he  is  the  peti- 
tioner in  the  above  entitled  application ;  that  he  has  heard 
read  the  foregoing  petition  and  knows  the  contents  thereof ;  that 
the  same  is  true  of  his  own  knowledge,  except  as  to  those  matters 
which  are  therein  stated  on  his  information  or  belief,  and  as  to 
those  matters  that  he  believes  it  to  be  true. 

D.  B. 

Sec.  12,  (a). 


-5]  PETITION.  25 


Subscribed  and  sworn  to  before  me, , 

a  Notary  Public,  in  and  for  said  County  and  State,  this 

day  of ,  19 

A.  S.  L., 
Notary  Public. 

A  personal  form  for  the  petition  for  registration  is  frequently 
used  and  fills  all  requirements,  as  follows: 

2.     (Sec.  5.)     Petition  for  registration — Personal  form. 

To  the  Superior  Court  of  California. 

In  and  for  the  County  of  

I  hereby  apply  to  have  the  land  hereinafter  described  brought 
under  the  operation  of  the  act  for  the  certification  of  land  titles, 
etc.,  enacted  by  the  People  of  the  State  of  California,  at  the  gen- 
eral election  held  November  3,  1914,  and  pray  the  Court  for  a 
decree  declaring  me  to  be  the  owner  in  fee  of,  and  to  confirm 
my  title  to,  said  land,  and  ordering  the  registration  thereof  as 
provided  by  the  said  act. 

1st. — My  full  name  is 

Age 

I  am  not  under  any  legal  disability. 

My  residence  and  postoffice  address  is 

Occupation 

I  am  married  to ,  whose  residence  and 

postoffice  address  is 

2nd. — I  am  the  owner  in  fee  simple  of  the  following  described 

land  in  the  State  of  California,  County  of ,  Towit : 

(describe.) 

Continue  with  further  allegations  as  in  one  of  the  applications 
in  Form  3,  but  using  the  personal  pronoun. 

Dated  this day  of ,  19 

D.  B. 
State  of  California, 

County  of 

D.  B.  being  by  me  first  duly  sworn,  deposes  and  says  that  he 
is  the  petitioner  in  the  foregoing  application,  that  the  statements 
in  his  petition  are  true  of  his  own  knowledge,  except  as  to  those 
matters  which  are  therein  stated  on  his  information  or  belief,  and 
as  to  those  matters  that  he  believes  them  to  be  true. 

Witness  my  hand  and  seal,  this day  of ,  19 

A.  S.  L. 
Notary  Public  in  and  for  said  County  and  State. 

Application  for  registration  will  frequently  be  made  by  several 
owners  of  separate  pieces  of  land,  in  one  proceeding,  to  save  ex- 
pense. The  form  for  a  general  petition  is  therefore  given  em- 
bracing several  owners  of  different  character. 


26  TORREN'S  LAND  LAW  OF  CALIFORNIA,  [SEC.  5- 

3.     (Sec.  5.)     General  petition  for  registration. 

In  the  Superior  Court  of 
the  State  of  California, 
in  and  for  the  County 

of 

D.  B.,  A.  M.,  a  minor  by 
L.  G.,  his  guardian. 

A.  E.,  Administrator  of 
the  estate  of    A.     B.,  de- 


No. 


Petition  for  registraiton  of 
title  to  land. 


ceased. 

W.  C,  M.  C,  and  The 
C.  H.  R.  Company,  a  cor-    - 
poration,  by  L.  A.,  its  duly 
appointed  agent. 

Petitioners. 
vs. 

C.  H.,  D.  M.,  and  A.  D., 
Defendants. 

To  the  Superior  Court  of County: 

The  petitioners  herein  make  appliction  to  have  the  lands  here- 
inafter described  brought  under  the  operation  of  the  act  for  the 
certification  of  land  titles,  etc.,  enacted  by  the  people  of  the  State 
of  California  at  the  general  election  held  November  3,  1914,  and 
set  forth  the  following  facts : 

A. 

Each  of  the  several  petitioners  makes  statement  for  himself  or 
herself  that  his  or  her  full  name  is  as  hereinafter  given  in  his  or 
her  application ;  that  he  or  she  is  of  full  age  of  twenty-one  years 
and  not  under  any  legal  disability  except  as  hereinfater  stated, 
and  that  the  land  hereinafter  described  as  being  owned  by  him  or 
her  is  not  subject  to  any  easement,  lien,  or  incumbrance,  nor  has 
any  other  person  or  corporation  any  estate,  claim  or  interest  in 
said  land,  or  any  part  thereof,  in  possession,  reversion  or  expect- 
ancy, as  he  or  she  verily  believes,  except  as  hereinafter  set  forth. 

APPLICATION   ONE 

The  petitioner,  D.  B.26  has  never  been  married :  (Or  is  married, 

and  the  full  name  of  his  wife  is _.... ,  and 

her  residence  and  postoffice  address  is _ Or, 

has  been  married,  but  the  marriage  relationship  has  been  termin- 
ated by  the  death  of  his  wife,  or,  by  divorce  given  by  the 
court  of at 

His  residence  and  postoffice  address  is  No Street, 

His  occupation  is 


2«if  the  petition  is  filed  by  two  or  more  persons  as  tenants  in  com- 
mon, under  Sec.  25,  state  the  fact,  and  the  undivided  interest  of  each. 


-5.]  PETITION.  27 

II. 

Said  petitioner,  D.  B.,  is  the  owner  in  fee  simple  of  the  follow- 
ing described  land  in  the  State  of  California,  County  of — — , 

Towit:    Lot  No ,  on  a  plat  of  subdivision  recorded  in 

Book ,  Page ,  in  the  office  of  the  Recorder 

of _ _ County.    (//  any  official  map  is  on  file  in 

the  Recorder's  office  it  may  be  referred  to.  In  case  there  is  no 
plat  or  map  on  file  to  be  referred  to,  describe  the  property,  and  if 
a  survey  has  been  made,  after  giving  a  full  description  of  the  land, 

say:    A  plat  of  survey  of  said  land  made  by. is  filed 

herewith  marked  Exhibit 

III. 

Applicant  obtained  title  to  said  land  by  deed  dated , 

recorded „ ;2T    An  abstract  of  title28  to  the  land  is 

filed  herewith,  marked  Exhibit 

IV.29 

Applicant  D.  B.  further  avers  that  he  has  (or,  that  he  and  his 
predecessors  in  interest  have)80  been  in  the  actual,  exclusive  and 
adverse  possession  of  the  land  continuously,  for  more  than  five 
years  next  preceding  the  filing  of  this  petition,  as  the  owner,  (or, 
owners),  in  fee  simple,  claiming  to  own  the  same  as  against  the 
world.  The  possession  of  the  said  D.  B.  has  been  through  ten- 
ants and  representatives,  of  petitioner,  claiming  no  other  interest 
in  the  land  adverse  to  the  petitioner.  (Or,  state  any  character  of 
possession.)91  And  that  he  has  (or,  he  and  his  predecessors  in 
interest  have)  paid  all  taxes,  of  every  kind,  legally  levied  or 
assessed  against  such  property,  during  such  period. 


"If  the  land  has  been  derived  through  a  tax  sale,  made  before  1895, 
as  provided  for  in  Sec.  8,  set  forth  the  time  and  place  of  sale  and  the 
deed  obtained  under  the  sale.  Then  also  adverse  possession  and  pay- 
ment of  taxes  for  five  years  must  be  averred  as  in  Item  IV  of  this 
petition.  If  the  tax  deed  was  obtained  from  the  State,  an  averment  of 
that  fact  should  be  made.  See  Sec.  8  and  comments  under. 

zswhen  the  title  has  been  previously  insured  by  a  corporation,  duly 
qualified,  set  forth  the  fact  and  the  date,  and  file  the  policy  as  an 
exhibit.  So  also  when  the  title  to  the,  or  any  of  the  land  has  been 
previously  determined  by  a  final  decree  of  a  court  of  competent  juris- 
diction, set  forth  the  fact  here  and  file  a  certified  copy  of  the  decree 
or  produce  the  judgment  roll  (See  note  to  Sec.  6,  (d)  as  an  exhibit.  In 
such  cases  the  abstract  may  be  a  limited  one  as  provided  by  Sec.  6. 

If  title  is  based  on  adverse  possession  as  in  IV.  of  this  petition  no 
abstract  is  required. 

zoSee  Sec.  6,  (c),  and  notes.  Omit  this  item  when  the  application  is 
not  based  on  adverse  possession  and  payment  of  taxes  for  five  years. 

soWhere  the  adverse  possession  has  been  in  part  by  the  predecessors 
the  petition  should  set  out  the  particulars,  giving  the  names  of  the 
former  owners,  and  the  periods  of  their  possession.  As  to  making 
proof,  see  note  to  Sec.  6,  (c). 

3>See  note  to  Sec.  6,  (c),  as  to  possession  required. 


28  TORREN'S  LAND  LAW  OF  CALIFORNIA.  [SEC.  5- 

V. 

The  land  and  permanent  improvements  were  assessed  on  the 
last  assessment  for  county  taxation  at  $ 

VI. 

The  land  is  the  separate  property  of  the  said  D.  B.,  and  is 
not  subject  to  a  homestead  claim.  (Or,  is  a  homestead;  or,  is 
subject  to  a  homestead  claim.) 

VII. 

The  land  is  now  occupied  by  the  applicant32  as  (state  nature  of 
occupancy,  sufficiently  to  show  his  complete  possession  and  super- 
vision. ) 

Or,  the  land  is  now  occupied  by  O.  C,  for  purposes  of  (state 

fully)  ;  his  post  office  address  is and  the 

only  interest  claimed  by  him  in  said  land  is  as ... 

Or,  the  land  is  unoccupied  at  present  and  consists  of  (state  its 
character.) 

VIII. 

The  land  is  bounded  on  the side  by  a  public  (or,  pri- 
vate) way,  but  applicant  claims  no  land  within  the  boundary  of 
said  way  and  does  not  desire  to  have  the  line  of  way  determined 
by  the  court.33 

IX. 

The  liens  and  incumbrances  on  said  land  are  as  follows,  and 
their  priorites  are  in  the  order  here  set  forth : 

1.  M.  H.,  whose  postoffice  address  is ,  holds  a 

mortgage  on  the  land  for  (describe),  recorded  in  Book...... , 

Page. ,records  of  said County. 

2.  Etc.     Set  forth  as  indicated  in  Sec.  24. 

X. 

The  property  adjoining  the  above  described  land  on  the  north 

is  owned  by ,  whose  residence  and  postoffice  address  is 

The  property  on  the  east  is  owned  by,  etc. 

The  applicant  is  unable,  after  diligent  inquiry  to  ascertain  the 
ownership  of  the  property  adjoining  on  the  west. 

APPLICATION  TWO 

The  petitioner  A.  M.  is  a  minor  of  the  age  of years ; 

his  occupation  is ,  and  his  residence  and  postoffice 

address  is (make  statement  as  to  marriage,  as  in 

application  one. 

This  application  is  made  on  behalf  of  said  A.  M.  by  L.  G.,  his 


to  these  allegations  and  proof  of  them,  see  notes  to  Sec.  5. 

Sec.  6.  If  claim  is  made,  and  applicant  desires  the  court  to 
determine  the  line  of  way,  make  petition  accordingly  and  the  court 
may  order  a  survey  to  be  made  as  In  Entry  No.  5,  POST. 


-5]  PETITION.  29 

legally  appointed  guardian,  whose  occupation  is , 

and  his  residence  and  postoffice  address  is _ 

Continue  with  other  items  as  in  Application  One. 

APPLICATION  THREE 

The  petitioner,  A.  E.,  is  administrator  (or,  executor)  of  the 
estate  of  A.  B.,  deceased,  duly  appointed  thereto  (state  when  and 

where.)  His  occupation  is ,and  his  residence 

and  postoffice  address As  such  administrator 

the  said  A.  E.  makes  application  to  have  the  title  of  the  land 
hereinafter  described  confirmed  to  the  estate  of  the  said  A.  B.  or 
to  such  distributees  of  such  estate  as  shall  be  found  to  be  the 
owners  thereof  in  fee. 

The  full  name  of  the  deceased  was ;  his  occupa- 
tion was ,  and  his  last  place  of  residence  was 

„ He  was  married  to  (make  statement  as  to 

whether  his  wife  is  living  and  any  facts  bearing  on  the  title,  in- 
cluding date  of  his  death. 

II. 

The  said  A.  B.  was  in  his  life  time  the  owner  in  fee  simple  of 
Continue  as  in  Application  One. 


The  petitioners  W.  C.  and  M.  C.  are  husband  and  wife.  Their 
residence  and  postoffice  address  is The  occupa- 
tion of  W.  C.  is ,  and  that  of  M.  C.  is  house  wife. 

Ill,  IV  AND  V. 
As  in  Application  One. 

VI. 

The  land  is  community  property  of  said  petitioners  (state  as  to 
homestead.) 

Continue  as  in  Application  One. 

APPLICATION   FIVE 

The  petitioner,  The  C.  H.  R.  Company,  is  a  corporation  organ- 
ized under  the  laws  of  the  state  of ,  and  incorporated 

in  the  City  of ,  on  the day  of , 

19 Its  principal  place  of  business  is  at The 

name  of  its  President  is ,  whose  residence 

and  postoffice  address  is Its  Secretary  is 

,  whose  residence  and  postoffice  address  is 


This  application  is  made  by  L.  A.,  who  is  the  duly  authorized 

agent  of  the  said  Company.     His  occupation  is , 

and  his  residence  and  postoffice  address  is He 

is  acting  for  said  Company  in  this  application  by  authority  from 


30  TORREN'S  LAND  LAW  OF  CALIFORNIA.  [SEC.  5- 

their  Board  of  Directors,    given    by     resolution     adopted,  etc. 
(State  particulars.) 
Continue  as  in  Application  One. 

E. 

Wherefore  the  petitoners,  named  in  the  foregoing  Applications, 
severally  pray  the  Court  that  the  lands  described  herein  belonging 
to  each  respectively,  be  brought  under  the  operation  of  the  act 
above  named,  and  for  a  decree  declaring  each  to  be  the  owner 
in  fee  of,  and  confirming  the  title  of  each  to  their  said  lands,  and 
ordering  the  registration  thereof  as  provided  by  the  said  act ;  and 
for  such  other  relief  as  shall  be  according  to  law  and  equity. 

C.  AND  C. 

Attornevs  for  Petitioners. 
State  of  California, 

County  of._ _ 

The  Petitioners  in  the  foregoing  applications,  D.  B.,  L.  G.,  as 
guardian  of  A.  M.,  a  minor,  A.  E.,  as  administrator  of  the  estate 
of  A.  B.,  deceased,  W.  C.,  M.  C.,  and  L.  A.,  as  the  duly  appointed 
agent  of  the  C.  H.  R.  Company,  being  each  severally  first  duly 
sworn  upon  oath  say,  each  for  himself  or  herself,  that  he  or  she 
has  read  the  foregoing  petition  so  far  as  it  relates  to  his  or  her 
claims,  allegations  and  land,  and  knows  the  contents  thereof, 
and  that  the  same  is  in  such  respects  true  of  his  or  her  own 
knowledge,  except  as  to  the  matters  therein  stated  on  informa- 
tion or  belief,  and  that  as  to  those  matters  he  or  she  believes  it 
to  be  true.  D.  B. 

L.   G. 
Guardian  of  A.  M.,  a  Minor. 

A.   E. 

Administrator  of  the  Estate  of  A.  B.,  Deceased. 

W.   C. 
M.  C. 
L.  A. 
Agent  of  the  C.  H.  R.  Company. 

Subscribed  and  sworn  to  before  me,  ,  a 

Notary  Public  in  and  for  said  County  and  State,  this _... 

day  of. ,  19 


Notary  Public. 
ASSENTS 

We,  the  undersigned,  claiming  an  interest34  in  the  land  de- 
scribed in  Application ,  in  the  foregoing  petition,  hereby 

give  our  assent  to  the  registration  of  the  same  as  prayed  for  in 
said  petition .  _ 


s* Assents  to  registration  by  persons  having  or  claiming  an  interest 


-6]  PLAT — SURVEY — ABSTRACT.  31 

State  of  California, 

/-*  r  ss- 

County  of ~ — 

On  this day  of ,  19 ,  before  me, 

,  a  Notary  Public,  in  and  for  said  County, 

personally  appeared ,  and ~ ,  and 

__ ,  known  to  me  to  be  the  persons  whose 

names  are  subscribed  to  the  foregoing  instrument  of  assent  and 
acknowledged  that  they  executed  the  same. 

Witness  my  hand  and  official  seal. 


Notary  Public,  in  and  for  said  County  and  State. 
(SEAL.) 

35 We,  owners  of  lands  adjoining  the  land  included  in  Applica- 
tion  ,  in  the  foregoing  petition  for  registration,  hereby 

assent  to  the  hearing  of  the  petition  and  the  registration  of  the 
land  as  prayed  for  therein. 


PLAT — SURVEY — ABSTRACT — ADVERSE  POSSESSION. 

Sec.  6.  If  said  land  is  part  of  a  city,  town  or  subdivision  of 
which  a  map  or  plat  made  and  verified  as  required  by  the  then 
existing  laws  of  the  State  of  California  or  an  official  map  is  on 
file  in  the  office  of  the  county  recorder  and  upon  such  map  the 
land  appears  in  such  manner  that  it  can  be  identified  thereon  by 
reference,  the  application  may  refer  to  such  map36  In  all  cases 
where  said  land  can  not  be  identified  by  reference  to  such  map 
or  where  no  such  map  is  on  file  in  the  office  of  the  county  re- 
corder, a  plat  or  plan  of  survey  of  the  land  made  by  the  county 
or  a  licensed  surveyor  must  accompany  the  application.  Such 

in  the  land  must  be  acknowledged  and  filed  with  the  clerk.  Sec.  12. 
They  may  be  attached  to  the  petition  or  filed  separately.  When  filed 
separately  see  Form  No.  20,  Sec.  12. 

If  a  defendant  to  an  application  to  register  title,  attaches  his  con- 
sent to  the  entry  of  the  decree,  to  the  application  itself,  it  is  sufficient, 
and  It  is  not  material  whether  the  statute  expressly  provides  that  the 
consent  shall  be  evidenced  In  that  manner.  Mooney  vs.  Valentynovlcs, 
262  111.  355. 

As  a  matter  of  practice,  to  save  time  and  expense,  it  is  better  to 
obtain  all  assents  possible. 

ssThe  owners  of  adjoining  lands  may  give  their  assent  in  writing, 
without  an  acknowledgment.  Sec.  12. 

-"Registration  was  barred  in  a  case  where  the  land  was  referred  to 
by  subdivision  and  the  number  of  the  lot,  but  where  the  subdivision 
was  not  referred  to  properly,  as  of  record,  nor  a  plat  of  the  same  filed 
in  the  proceedings,  on  the  ground  that  the  description  was  not  suffi- 
ciently definite  to  identify  the  land.  Glos  vs.  Bragdon,  229  III.  223. 

Applicant  must  show  title  in  himself,  and  it  is  therefore  essential 
that  the  conveyance  under  which  he  claims  should  identify  the  prem- 
ises so  that  they  could  be  as  ascertained  by  the  description.  Same  case. 


32  TORREN'S  LAND  LAW  OF  CALIFORNIA.  [SEC.  6- 

survey  must  show  the  boundaries  of  the  land  and  its  relation  to 
adjoining  lands  and  streets  and  any  encroachment  if  any. 

(a)  The  court  may,  in  any  case,  before  decree,  require  a  sur- 
vey to  be  made  for  the  purpose  of  determining  exact  boundaries. 
[4.] 

(b)  If  the  application  describes  the  land  as  bounded  by  a 
public  or  private  way,  it  shall  state  whether  or  not  the  applicant 
claims  any  and  what  land  within  the  limits     of     the     way  and 
whether  the  applicant  desires  to  have  the  line  of  the  way  deter- 
mined.37 [5.] 

(c)  If  it  appears  by  the  petition  that  the  applicant,  either  by 
himself  or  by  himself  and  his  predecessors  in  interest,  has  been  in 
the  actual,  exclusive  and  adverse  possession38  of  the  or  any  part 
of  the  land  described,  continuously  for  more  than  five  years  next 
preceding  the  filing  of  the  petition  claiming  to  own  the  same  in 
fee  against  the  world,  and  that  he  has  or  that  he  and  his  prede- 


a  case  where  the  land  of  S.  and  other  land  bounded  on  a  private 
way,  and  the  line  of  the  way  was  determined  in  registration  proceed- 
ings, but  was  wrongly  located,  HELD,  That  the  decision  in  S.'s  case  ap- 
plied only  to  S's  lots  and  the  part  of  the  way  on  which  they  bounded, 
and  that  there  was  nothing  in  the  circumstances  to  prevent  the  owner 
of  another  lot  insisting  upon  having  the  way  properly  located  where  it 
bounded  on  his  land.  Pollard  vs.  Burchard,  119  Mass.  376. 

In  the  case  of  First  National  Bank  vs.  City  of  Woburn,  192  Mass.  220, 
the  question  which  arose  in  the  Land  Court  was,  whether  the  petition- 
er's title  was  good  up  to  the  line  of  the  street  as  originally  laid  out  or 
whether  the  pubic  had  acquired  a  way  by  prescription  over  a  strip  of 
land  about  two  and  a  half  feet  wide,  lying  between  the  easterly  side 
of  Main  street  as  laid  out  and  the  base  line  of  the  bank  building  stand- 
ing on  petitioner's  lot.  The  court  said: 

"A  fundamental  inquiry  is,  whether  the  Land  Court,  in  a  proceeding 
of  this  kind  (for  registration  of  the  title)  has  a  right  to  determine  such 
a  question.  We  have  no  doubt  it  has  this  right.  An  application  for  the 
registration  of  a  title  is  by  the  terms  of  the  statute  a  proceeding 
in  rent,  which  operates  directly  to  vest  and  establish  title  to  the  land. 

38A  person  asking  registration  on  the  ground  of  adverse  possession 
who  had  possession  of  inclosed  property  under  claim  and  color  of  title 
for  seven  years  (only  five  years  are  required  in  California)  and  had 
paid  all  taxes  legally  assessed  during  that  time,  is  entitled  to  have  his 
title  registered.  Tobias  vs.  Kaspzuk,  247  111.  80.  Glos  vs.  Mickow,  211 
111.  117. 

On  Nov.  7,  1906,  John  N.  Woods  tiled  an  application  to  register  his 
title  to  a  lot  in  Norwood  Park,  alleging  that  the  lot  was  vacant  and 
unoccupied,  and  that  Jacob  Glos  and  others  claimed  some  interest 
therein  by  reason  of  tax  deeds  and  other  conveyances  of  the  lot  to 

them Thereafter  Jacob  Glos  took  possession  of  the  lot  on  July 

12,  1906. 

Jacob  Glos  had  color  of  title,  acquired  in  good  faith,  under  two  tax 
deeds,  and  had  paid  all  taxes  and  special  assessments  legally  levied 
against  the  lot,  for  the  seven  successive  years  from  1897  to  1903,  in- 
clusive, but  had  not  taken  possession  of  the  lot,  when  the  application 
was  filed  and  it  was  then  vacant  and  unoccupied.  Section  seven  of 
the  act  in  regard  to  limitation  under  which  Glos  claims,  provides,  in 
order  that  the  bar  of  the  statute  may  become  complete  there  should 


-6.]  TITLE   OF    ALVERSE   POSSESSION  33 

cessors  in  interest  have  paid  all  taxes  of  every  kind  legally  levied 
or  assessed  against  such  property  during  said  period,39  the  petition 
must  then  also  state  the  character  of  such  possession40  and  the 


be  a  concurrence  of  claim  and  color  of  title  acquired  In  good  faith, 
payment  of  taxes  and  actual  taking  possession  of  the  premises. 

Held,  that  Glos  could  not  perfect  his  claim  after  the  application 
for  registration  had  been  filed.  Woods  vs.  Glos,  257  111.  125. 

Possession  of  land  is  not  shown  by  proof  of  the  recording  of  the 
deed  and  making  of  entries  in  books  with  reference  to  the  property. 
Glos  vs.  Wheeler,  229  111.  272. 

Mere  record  of  title  of  marsh  and  beach  land,  not  running  back  to 
the  original  grant  or  patent,  raises  no  presumption  of  possession,  but 
possession  must  be  established  by  oral  proof.  Crabbe  vs.  Hardy,  135 
N.  Y.  S.  119. 

39payment  of  Taxes — Color  of  Title. 

Where  applicant  produces  receipts  showing  payment  of  general 
taxes  for  a  series  of  years,  the  presumption  will  be  indulged  that  these 
are  all  the  general  and  special  taxes  and  special  assessments  levied 
and  assessed  against  the  property,  it  is  incumbent  on  the  defendant 
to  show  that  there  were  other  taxes  or  special  assessments.  Glos  vs. 
Mickow,  211  111.  117. 

In  proving  title  by  seven  years  possession  (in  California,  five) 
coupled  with  the  payment  of  taxes,  any  question  as  to  the  sufficiency 
of  the  proof  of  the  payment  of  taxes  must  be  raised  by  objections  be- 
fore the  examiner  of  titles.  It  can  not  be  raised  for  the  first  time  in  a 
court  of  review.  Gage  vs.  Consumers  E.  L.  Co.,  194  111.  30. 

Possession  for  sixteen  years  without  proof  of  payment  of  taxes  for 
at  least  seven  consecutive  years  during  the  time  petitioner  was  in 
possession  under  the  deed,  did  not  efetablish  title  in  the  petitioner  by 
limitation  or  otherwise,  as  against  the  world.  Glos  vs.  Holberg,  220 
111.  167. 

Payment  of  taxes  under  color  of  title,  may  be  shown  "by  any  com- 
petent evidence,  including  testimony  of  a  person  having  knowledge  of 
the  payment;  and  such  payment  is  established  by  tax  receipts  and  the 
testimony  of  the  holder  of  color  of  title  that  he  paid  the  taxes  each 
year,  even  though  his  initials  do  not  correspond  with  those  given  in 
several  of  the  tax  receipts  introduced  in  evidence. 

The  mere  introduction  of  a  tax  deed  in  evidence  without  proof  as 
to  what  amount,  if  any,  they  had  paid  on  account  of  taxes,  is  not  suf- 
ficient evidence  to  base  a  decree  of  re-imbursement  upon  and  there  was 
no  error  in  ordering  Title  registered  without  any  terms  on  the  appli- 
cant. Tobias  vs.  Kaspzyk,  247  111.,  80. 

The  proof  must  show  color  of  title,  payment  of  taxes,  etc.  Glos  vs. 
Wheeler,  229  111.,  272. 

A  partition  decree  which  confirms  report  of  commissioners  and  pur- 
ports to  vest  the  title  to  the  same  extent  as  would  a  deed,  though  it 
may  be  erroneous,  is  color  of  title.  Peters  vs.  Discus,  254  111.,  379. 

^"Establishing  Title  by  Adverse  Possession 

Neither  the  act  of  New  York  nor  Illinois  contains  this  clause  as  to 
finding  adverse  possession.  But  in  Illinois  decisions  it  is  recognized 
that  there  are  several  ways  of  proving  legal  title  for  the  purpose  of 
registration  besides  patent  title  from  the  United  States  government, 
proven  by  original  deeds  and  muniments  of  title.  Among  others  is 
noted  seven  years  possession  and  payment  of  taxes  under  claim  and 
color  of  title,  under  section  six  of  the  limitation  act.  This  corresponds 
to  the  California  title  by  prescription.  Any  absolute  title  in  fee  may  be 
registered  however  acquired.  In  California  one  method  of  conferring 
title  is  by  occupancy  (Sec.  1007,  Civil  Code)  for  the  period  prescribed 


34  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.  6- 

applicant  must  prove  the  same  to  the  satisfaction  of  the  court  on 
the  hearing.41 

by  the  Code  of  Civil  Procedure  as  sufficient  to  bar  an  action  for  the  re- 
covery of  the  property.  This  period  is  by  Sec.  322,  et  seq.,  of  C.  C.  P. 
five  years  of  adverse  possession  with  the  payment  of  taxes. 

The  Torrens  act  makes  no  change  in  this  respect.  In  the  foregoing 
section  it  is  provided  that  when  the  applicant  bases  his  title  on  adverse 
possession  and  payment  of  taxes  "the  petition  must  then  also  state  the 
character  of  such  possession  and  the  applicant  must  prove  the  same  to 
the  satisfaction  of  the  court."  But  it  is  nowhere  said  in  the  act,  that 
when  he  has  done  this  he  is  entitled  to  registration.  All  that  he  accom- 
plishes by  these  allegations  and  proofs  is  to  bring  himself  under  the 
general  statute  by  "stating  the  character  of  his  possession"  and  making 
it  appear  that  it  comes  under  some  one  of  the  cases  denned  as  consti- 
tuting adverse  possession,  by  the  code  of  civil  procedure.  If  he  does 
this  he  has  a  good  title,  and  as  owner  of  the  land  is  entitled  to  regis- 
tration. 

We  must  therefore  refer  to  the  general  statutes  to  determine  the 
character  of  possession  required  for  registration  under  this  provision. 

The  Code  of  Civil  Procedure  in  prescribing  the  occupancy  sufficient 
to  bar  an  action  for  the  recovery  of  property,  defines  adverse  posses- 
sion as  follows: 

Sec.  322.  When  it  appears  that  the  occupant,  or  those  under  whom 
he  claims  entered  into  the  possession  of  the  property  under  claim  of 
title,  exclusive  of  other  right,  founding  such  claim  upon  a  written  in- 
strument, as  being  a  conveyance  of  the  property  in  question,  or  upon 
the  decree  or  judgment  of  a  competent  court,  and  that  there  has  been 
a  continued  occupancy  and  possession  of  the  property,  under  such  claim' 
for  five  years,  the  property  so  included  is  deemed  to  have  been  held 
adversely,  except  that  when  it  consists  of  a  tract  divided  into  lots,  the 
possession  of  one  lot  is  not  deemed  a  possession  of  any  other  lot  of 
the  same  tract. 

Sec.  323.  For  the  purpose  of  constituting  an  adverse  possession  by 
any  person  claiming  a  title  founded  upon  a  written  instrument,  or  a 
judgment  or  decree,  land  is  deemed  to  have  been  possessed  and  occu- 
pied in  the  following  cases: 

1.  Where  it  has  been  usually  cultivated  or  improved. 

2.  Where  it  has  been  protected  by  a  substantial  inclosure. 

3.  Where,  although  not  inclosed,  it  has  been  used  for  the  supply  of 
fuel,  or  for  fencing  timber  for  the  purpose  of  husbandry,  or  for  pastur- 
age, or  for  the  ordinary  use  of  the  occupant. 

4.  Where  a  known  farm  or  single  lot  has  been  partly  improved,  the 
part  of  said  farm  or  lot  that  has  been  left  not  cleared,  or  not  inclosed, 
according  to  the  usual  course  or  custom  of  the  adjoining  country,  shall 
have  been  deemed  to  have  been  occupied  for  the  same  length  of  time 
as  the  part  improved  or  cultivated. 

Sec.  324.  Where  there  has  been  an  actual,  continuous  occupancy  of 
the  land,  under  a  claim  of  title,  exclusive  of  any  other  right,  but  not 
founded  upon  a  written  instrument,  Judgment,  or  decree,  the  land  so 
actually  occupied,  and  no  other,  is  deemed  to  have  been  held  adversely. 

Sec.  325.  For  the  purpose  of  constituting  adverse  possession  by  any 
person  claiming  a  title  not  founded  upon  a  written  instrument  or  a 
judgment  or  decree,  land  is  deemed  to  have  been  possessed  and  occu- 
pied in  the  following  cases,  to-wlt: 

1.  Where  it  has  been  protected  by  a  substantial  inclosure. 

2.  Where  it  has  been  usually  cultivated  or  improved. 

Provided,  however,  that  in  no  case  shall  adverse  possession  be  con- 
sidered established  under  the  provisions  of  any  section  of  this  code, 
unless  it  shall  be  shown  that  the  land  has  been  occupied  and  claimed 
for  the  period  of  five  years  continuously,  and  the  party,  persons,  their 


-6.]  ABSTRACT  OF  TITLE  35 

(d)  Each  application  must  be  accompanied  by  an  abstract  of 
title  to  all  land  which  does  not  appear  by  said  petition  to  have 
been  adversely  held  as  hereinabove  provided.  When  the  title  to 
the  or  any  of  the  land  described  has  been  previously  determined 
by  a  final  decree  of  a  court  of  competent  jurisdiction42  no  abstract 
regarding  the  same  need  antedate  such  decree. 

(?)  When  the  title  to  the  or  any  of  the  land  described  has 
been  previously  insured  by  a  corporation  transacting  business  in 
insuring  titles  to  real  estate  and  a  policy  of  insurance  has  been 
issued  by  said  corporation43  and  at  the  time  of  the  issuance  of 
said  policy,  said  company  had  fully  complied  with  all  laws  of 
the  State  of  California,  such  policy  may  be  made  the  starting 
point  of  any  abstract  to  be  filed  under  the  provisions  of  this  act 
and  the  abstract  of  title  so  to  be  presented  need  only  commence 
at  the  date  of  such  title  insurance  policy  and  the  verification 
thereof  hereinafter  provided  need  only  apply  to  the  portion  of 
said  abstract  subsequent  to  the  date  of  said  title  insurance  policy, 
but  must  include  all  defects  or  exceptions  stated  in  said  policy. 

(/)  All  abstracts  herein  referred  to  must  be  verified  by  the 
searcher  making  the  same,  as  in  proceedings  in  partition,44  or  if 

predecessors  or  grantors,  have  paid  all  the  taxes,  State,  County,  or 
municipal,  which  have  been  levied  or  assessed  upon  such  land. 

•Sec.  1007,  Civil  Code  of  California,  provides; 

Occupancy  for  the  period  prescribed  by  the  code  of  Civil  Procedure, 
as  sufficient  to  bar  an  action  for  the  recovery  of  the  property  confers 
a  title  thereto,  denominated  a  title  by  prescription,  which  is  sufficient 
against  all. 
<iMaking  Proof 

As  adverse  possession  may  be  by  an  owner  and  his  predecessors 
the  practical  question  will  be  to  make  proof.  It  would  appear  that 
presentation  of  the  deeds  or  certified  copies,  as  evidence,  would  be  re- 
quired, but  that  this  alone  would  not  be  sufficient,  as  it  is  the  adverse 
possession  that  is  essential.  It  was  said  in  the  case  of  Gloss  vs.  Wheel- 
er, 229  111.  272,  that  possession  of  land  is  not  shown  by  proof  of  the 
recording  of  the  deed,  and  making  of  entries  in  books  with  reference 
to  the  property.  And  held  in  the  case  of  Crabbe  vs.  Hardy,  135  N.  Y.  S. 
119,  that  mere  record  of  title  of  marsh  and  beach  land,  not  running 
back  to  the  original  grant,  raises  no  presumption  of  possession,  but 
possession  must  be  established  by  oral  proof.  It  is  probable  that  such 
proof  will  be  required  here.  This  matter  of  possession  will  be  a  fit 
subject  for  investigation  by  the  examiner  of  titles,  or  the  referee,  to 
whom  the  case  is  sent. 

<2In  this  case  a  certified  copy  of  the  decree  should  be  filed  as  an 
exhibit;  or  perhaps  the  judgment  roll  will  be  required  as  held  in  the 
case  of  Harper,  admr.  vs.  Rowe,  53  Cal.  233,  where  it  was  said: 

If  a  party  attempts  to  avail  himself  of  a  decree  as  an  adjudication 
upon  the  subject  matter  as  a  link  in  his  chain  of  title  founded  on  a 
judicial  sale,  he  must  produce  the  judgment  roll  so  that  the  court  may 
determine,  on  an  inspection  of  the  entire  roll  whether  the  court  which 
rendered  the  decree  had  Jurisdiction  of  the  subject  matter. 

"The  policy  of  insurance  should  in  such  case  be  filed  as  an  exhibit. 

"By  Sec.  800,  Code  of  Civil  Procedure,  an  abstract  in  partition  pro- 
ceedings must  be  verified  by  the  affidavit  of  the  person  making  it  to 
the  effect  that  he  believes  it  to  be  correct. 


36  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.  6- 

made  by  a  corporation,  by  the  certificate  of  such  corporation, 
under  its  seal. 

(g)  Where  actual,  exclusive  and  adverse  possession  and  pay- 
ment of  taxes  is  alleged  but  not  proved  to  the  satisfaction  of  the 
court  on  the  hearing,  the  court  may  require  an  abstract  of  the 
title  as  herein  provided  to  be  furnished  which  shall  then  be  used 
in  the  same  manner  as  if  such  abstract  had  been  filed  with  the 
application.  [6.] 

(h)  No  person,  nor  any  corporation  which,  at  the  time  has 
not  fully  complied  with  the  provisions  of  the  laws  of  the  State  of 
California,  shall  be  authorized  to  make  or  furnish  such  abstracts 
of  title  until  after  entering  into  an  undertaking  with  two  or 
more  sufficient  sureties  to  the  people  of  the  State  of  California 
in  a  sum  not  less  than  $10,000.00,  which  may  be  increased  from 
time  to  time  by  order  of  the  court  [8.]  whenever  it  shall  appear  to 
such  court  that  by  reason  of  the  number  of  abstracts  of  title 
which  any  one  person  or  corporation  is  making  or  furnishing 
under  one  bond,  the  state  is  not  sufficiently  secured  thereby. 

(t)  Such  bond  shall  be  recorded  in  the  record  of  official 
bonds  in  the  recorder's  office  of  the  county.  Said  bond  shall  be 
conditioned  to  pay  all  damages  and  costs  which  the  State  may 
sustain  by  reason  of  any  error  or  insufficinecy  in  said  or  any  of 
said  abstracts.  The  sureties  on  such  bond  shall  qualify  as  pro- 
vided in  section  ten  hundred  and  fifty-seven  of  the  Code  of  Civil 
Procedure45  and  the  sufficiency  of  the  bond  and  of  the  sureties 
thereon  shall  be  approved  by  a  judge  of  the  Superior  Court  of 
the  county  where  such  bond  is  to  be  filed.  [7.]  The  sureties  upon 
such  bond  may  become  severally  liable  in  portions  of  not  less 
than  five  hundred  dollars  each,  making  in  the  aggregate  at  least 
two  sureties  for  the  whole  sum. 

(/)  Upon  any  petition  hereunder  being  filed,  the  clerk  shall 
immediately  endorse  thereon  the  exact  time  of  its  presentation 
and  shall  enter  the  same  in  a  book  kept  for  that  purpose  known 
as  the  land  register  docket. 

4.     ( Sec.  6. )       Order  for  survey. 
[Title.] 

It  appearing  to  the  court  that  the  petition  in  this  case  was  not 
accompanied  by  a  survey  of  the  land  sought  to  be  registered,  and 

«Sec.  1057,  Code  of  Civil  Procedure:  The  officer  taking  the  same 
must  require  the  sureties  to  accompany  it  with  an  affidavit  that  they 
are  each  residents  and  householders,  or  free-holders,  within  the  State, 
and  are  each  worth  the  sum  specified  in  the  undertaking  or  bond,  over 
and  above  all  their  just  debts,  or  liabilities,  exclusive  of  property 
exempt  from  execution;  but  when  the  amount  specified  in  the  under- 
taking or  bond  exceeds  $3000.00  and  there  are  more  than  two  sureties 
thereon,  they  may  state  in  their  affidavits  that  they  are  severally  worth 
amounts  less  than  the  amount  specified  in  the  undertaking  or  bond,  if 
the  whole  amount  is  equivalent  to  that  of  the  two  sufficient  sureties. 


-6.]  SURVEY — ABSTRACT  37 

that  such  survey  is  necessary  for  the  proper  consideration  of  the 
application  for  registration,  it  is  hereby  ordered  that  the  applicant 
have  a  survey  made  by  the  County  surveyor,  (or,  by  C.  S.  I.,  a 
regularly  licensed  surveyor),  to  determine  the  exact  boundaries 
of  the  land,  and  which  survey  shall  show  its  relation  to  adjoining 
lands  and  streets  and  any  other  natural  conditions,  and  shall  show 
any  encroachments  that  may  exist  on  said  land. 

5.  (Sec.  6.)     Order  for  survey  to  determine  line  of  public  way. 

[Title.] 
The  applicant  herein  having  in  his  petition  asked  that  the  line 

of  the  public  way  which  bounds  his  land  on  the be 

determined,  (or,  give  any  other  cause  for  the  order},  it  is  for 
good  cause  hereby  ordered  that  a  survey  be  made  by  the  County 
or  a  licensed  surveyor,  to  determine  the  line  of  way  and  the  exact 
boundaries  of  said  land. 

6.  (Sec.  6.)     Order  that  abstract  be  furnished  when  title  by 

adverse  possession  not  proven. 

[Title.] 

It  appearing  to  the  court  that  the  petition  in  this  case  alleges 
the  actual,  exclusive  and  adverse  possession,  with  the  payment 
of  all  taxes,  for  more  than  five  years  next  preceding  the  filing 
of  said  petition  as  a  basis  for  the  registration  of  the  land  de- 
scribed in  the  petition,  and  it  appearing  that  the  proof  offered 
by  the  applicant  is  not  sufficient  in  the  estimation  of  the  court,  to 
establish  the  facts  alleged  with  the  certainty  required  for  regis- 
tration, it  is  therefore  ordered  that  the  applicant  be  permitted  to 
furnish  the  court  with  an  abstract  of  title  to  said  lands,  to  be 
made  in  the  manner  and  by  such  person  or  corporation  as  author- 
orized  by  the  act  for  the  registration  of  titles,  to  be  used  as  in 

other  cases  in  proving  his  title ;  and days  are  allowed 

therefor,  and  on  failure  so  to  do  that  this  application  for  registra- 
tion stand  dismissed  at  the  cost  of  the  applicant. 

7.  (Sec.  6.)     Bond  of  person  making  abstracts  approved. 

This  day  came and  presented  a  bond  in 

the  sum  of dollars   (not  less  than  $10,000.00) 

conditioned  to  pay  all  damages  and  costs  which  the  State  may 
sustain  by  reason  of  any  error  or  insufficiency  in  any  abstract  of 

title  which  the  said — may  make  and  furnish,  of 

lands  sought  to  be  registered  under  the  laws  of  the  State ;  and 
said  undertaking  being  conditioned  according  to  law,  and  the 
sufficiency  of  said  bond  and  of  the  sureties  thereon  having  been 
approved  and  the  approval  endorsed  thereon  by  the  Hon.  L.  R. 
W.,  judge  of  the  Superior  Court,  it  is  ordered  that  it  be  received 
and  filed  in  the  office  of  the  recorder  of  this  County. 


38  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.  6- 

8.     (Sec.  6.)     Order  for  increase  in  amount  of  bond. 

It  appearing  to  the  court  that  the  undertaking  heretofore  fur- 
nished by as  examiner  of  titles,  furnishing 

abstracts  under  the  act  for  registration  of  titles,  in  the  sum  of 

$ ,  has  become  insufficient,  by  reason  of  the  number 

of  such  abstracts  being  furnished  by  him,  and  that  the  State  is 
not  sufficinetly  secured  thereby,  it  is  now  ordered  that  the  amount 
of  his  bond  be  increased  to dollars ;  and  that  an  addi- 
tional, or  a  new  undertaking  be  furnished,  in  accordance  with 
this  finding,  and  to  the  approval  of  a  (or,  the)  judge  of  this  court. 

Sec.  7.  FEE  TO  BE  FIRST  REGISTERED: — No  mortgage/  lien, 
charge,  or  lesser  estate  than  a  fee  simple  shall  be  registered  unless 
the  fee  simple  to  the  same  land  is  first  registered. 

(a)  It  shall  not  be  an  objection  to  bringing  land  under  this 
act,  that  the  estate  or  interest  of  the  applicant  is  subject  to  any 
outstanding  lesser  estate,  mortgage,  lien,  or  charge;  but  every 
such  lesser  estate,  mortgage,  lien,  or  charge  shall  be  noted  upon 
the  certificate  of  title  and  the  duplicate  thereof,  and  the  title  or 
interest  certified  shall  be  subject  only  to  such  estates,  mortgages, 
liens,  and  charges  as  are  so  noted,  except  as  herein  provided. 

Sec.  8.  FIRST  REGISTRATION  OF  A  TAX  TITLE  : — No  title  derived 
through  sale  for  any  tax  or  assessment  shall  be  entitled  to  be 
first  registered,  unless  it  shall  appear  to  the  satisfaction  of  the 
court  upon  the  hearing  of  the  application  that  the  applicant  or 
those  through  whom  he  claims  title,  have  been  in  the  actual,  ex- 
clusive and  adverse  possession  of  the  land  under  such  title  at 
least  five  successive  years  and  have  paid  all  taxes  and  assess- 
ments legally  levied  thereon  during  said  period.  But  the  fore- 
going shall  not  apply  to  any  title  derived  through  sale  by  the 
State  of  California  of  any  property  which  has  been  sold  by  the 
state  for  taxes  and  held  by  the  state  for  the  period  provided  by 
law. 

The  foregoing  section  refers  to  tax  titles  derived  through  two 
sources : 

1st.     Those  through  direct  purchase  at  a  tax  sale. 

2nd.  Those  through  purchase  from  the  State  of  California, 
which  the  state  had  previously  obtained  through  a  tax  sale. 

In  regard  to  the  first:  The  present  general  law  was  passed  in 
1895,  and  provides  by  Sees.  3767  and  3771,  Political  Code,  that 
all  delinquent  land  shall  be  declared  sold  to  the  State  of  Cali- 
fornia. Consequently  all  titles  of  this  first  kind  must  date  back  of 
1895,  and  they  must,  under  this  section,  be  held  adversely,  with 
payment  of  taxes,  for  five  years  previous  to  application  for  reg- 
istration. 

In  regard  to  the  second  kind :  The  foregoing  section  requiring 
five  years  of  adverse  possession,  etc.,  does  not  apply  to  a  tax 


-9  APPLICATION    FOR   REGISTRATION  39 

title  derived  through  a  sale  by  the  state,  provided  the  state  has 
held  it  for  the  period  provided  by  law.  This  period  refers  to 
the  time  during  which  the  property  may  be  redeemed,  which  by 
Sec.  3780,  P.  C,  is  five  years  after  the  date  of  the  sale  to  the 
state.  Until  that  five  years  has  expired  the  state  has  only  an 
equitable  title43and  can  not  receive  a  deed  for  the  land,consequent- 
ly  can  not  give  a  deed  to  an  individual  purchaser.  Then  the  five 
years'  time  for  redemption  having  expired,  and  the  title  of  the 
state  having  become  absolute  (Sec.  3788,  P.  C),  and  it  hav- 
ing received  a  deed  for  the  land  (Sec.  3785,  P.  C),  and  the  Con- 
troller of  the  State  having  sold  the  land  as  provided  in  Sec.  3897, 
an  absolute  title  is  conferred  on  the  purchaser.48  This  general  law 
governing  tax  sales  is  in  no  way  changed  by  the  Torrens  act.  All 
the  Torrens  act  does  is  to  say  that  this  tax  purchaser  from  the 
state  may  register  his  title  without  a  previous  five  years  posses- 
sion. Thus  putting  him  on  the  same  plane  as  any  other  owner 
of  absolute  title.  But  could  he  make  the  necessary  averments 
to  enable  him  to  register  under  the  claim  of  title  by  adverse 
possession?  Quere. 

The  foregoing  provision  does  not  appear  to  cut  off  any  of 
the  rights  of  the  original  owner  in  favor  of  the  "Tax  Shark"  as 
asserted  by  some  of  the  opponents  of  the  law. 

Sec.  9.  AMENDMENT  OF  APPLICATION  : — The  application  may  be 
amended44  only  by  petition  verified  as  in  the  case  of  the  original 
Such  amendment  may  be  ordered  by  the  court  on  its  own  mo- 
tion [9]  or  upon  the  motion  of  any  person  interested  in  the  pro- 
ceedings. [10.] 

9.  (  Sec.  9)     Order  for  amended  petition. 
[Title.] 

On  consideration  of  the  petition  herein  (and  in  accordance 
with  the  recommendation  of  the  Examiner  of  Ttitles)  the  court 
finds  that  the  statement  of  facts  therein  does  not  fully  comply 
with  the  requirements  of  the  act  for  registration  of  the  title  (or 
state  other  reason),  and  it  is  therefore  ordered  that  the  applicant 
be  allowed  to  file  an  amended  petition  within days. 

10.  (Sec.  9.)     Saint,  on  motion  of  applicant 
[Title.] 

On  motion  of  the  applicant  herein,  he  is  allowed  to  file  an 
amended  petition  in  this  case,  within days. 

«sSee  Santa  Barbara  vs.  S.  and  L.  Soc.,  137  Cal.  463. 

"A  defendant  can  not  complain  of  an  amendment  of  the  application 
in  a  manner  which  does  not  affect  his  interest.  Glog  vs.  Murphy,  225 
111.  58. 

Where  the  application  is  amended  it  is  not  erroneous  to  refuse  leave 
to  defendant  to  file  a  new  answer  to  the  same,  unless  it  appears  that 
the  amendment  is  material  as  respects  the  interest  of  such  defendant 
and  that  a  new  answer  by  him  is  necessary.  Same. 

As  to  service  of  notice  after  amendment,  see  note  to  Sec.  12. 


40  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.   10- 

Sec.  10.  Lis  PENDENS: — The  filing  of  the  application  in  the 
office  of  the  county  clerk  shall  be  sufficient  notice  of  the  same 
to  all  subsequent  purchasers  or  incumbrancers  without  the  filing 
of  a  lis  pendens  in  the  office  of  the  recorder. 

EXAMINATION  OF  ABSTRACTS — PETITION. 

Sec.  11.  ORDER  FOR  NOTICE  OF  FILING  PETITION: — The  court 
shall,  in  its  discretion,  where  one  or  more  abstracts  are  presented 
with  the  petition,  examine  them  itself  or  refer  the  same  as  pro- 
vided in  Sec.  18  of  this  act;  (a)  if  it  shall  appear  to  the  court 
from  an  examination  of  the  abstract  or  abstracts  or  from  the  re- 
port of  the  examiner  of  titles  or  from  the  petition  where  no  ab- 
stracts are  required,  that  the  title  to  the  land  described  in  the 
application  appears  to  be  substantially  as  alleged45  the  court  shall 
order  notice  to  be  given  as  provided  in  this  act.  [11,  12,  13,  14.] 


«The  New  York  act  requires  that  the  title  should  appear  to  be  in 
the  applicant  "beyond  a  reasonable  doubt,"  and  the  court  has  held: 

Where,  in  an  action  for  registration  of  title  to  real  property,  no 
persons  were  originally  named  as  defendants,  except  "The  People  of 
the  State,  and  all  other  persons,  if  any,  who  have  any  right,  or  interest 
in,  or  lien  upon,  the  property  affected  by  this  action,  or  any  part  there- 
of," but  subsequently  other  parties  were  made  defendants,  who,  answer- 
ing, put  in  issue  the  material  allegations  of  the  complaint,  and  specific- 
ally pointed  out  various  defects  in  the  title  sought  to  be  registered, 
and  it  appearing  from  the  official  examiner's  certificate  that  certain 
portions  of  the  property  were  in  persons  not  specifically  named  as  de- 
fendants, and  there  were  no  facts  stated  justifying  such  omission,  the 
court  had  no  jurisdiction  to  direct  the  commencement  of  the  action  to 
register  such  title,  or  to  authorize  the  issuing  of  the  summons.  The 
City  and  Sub.  House  Co.  vs.  People,  157  N.  Y.  459. 

At  the  commencement  of  an  action  for  the  registration  of  title  to 
real  property  the  court  is  not  justified  in  relying  upon  the  conclusions 
of  the  official  examiner,  but  is  bound  to  carefully  and  critically  examine 
the  certificate,  the  abstract,  and  the  accompanying  affidavits,  and  to 
see  that,  assuming  all  of  the  facts  therein  stated  (as  distinguished  from 
mere  conclusions,  references  or  opinions)  to  be  true,  not  only  does  the 
applicant  appear  to  have  a  title  free  from  reasonable  doubt,  but  that 
every  person  who  might  have  any  right  therein,  or  lien  thereon,  is 
specifically  named  as  a  party  defendant,  if  such  name  is  known  or  can 
be  ascertained.  Unless  this  is  done  the  court  has  no  jurisdiction  to 
direct  that  such  action  shall  be  commenced,  or  to  authorize  the  issuing 
or  service  of  a  summons  therein.  Partenfelder  vs.  People,  157  N.  Y.  462. 

The  complaint  in  registration  proceedings  and  all  other  papers  filed 
must  show  that  the  plaintiff  appears  to  have  a  title  that  should  be  reg- 
istered, and  no  registration  can  be  made  unless  the  court  is  satisfied 
that  the  title  is  free  from  reasonable  doubt. 

The  court  can  not  grant  registration  of  title  without  proof  that  the 
title  is  one  of  the  character  specified  in  the  statute  and  is  free  from 
reasonable  doubt.  And  an  allegation  as  to  the  nature  and  character  of 
the  applicant's  title  is  essential,  for  what  must  be  proved  must  be 
alleged.  Lachman  vs.  People,  127  N.  Y.  S.  910. 

A  statement  of  a  legal  conclusion  by  the  examiner  giving  a  certifi- 
cate of  title,  can  not  be  accepted  by  the  court,  in  an  application  for  an 
order  directing  an  action  to  register  title,  unless  the  facts  are  before 
the  court  by  abstract  or  statement.  Lachman  vs.  People,  127  N.  Y.  S. 
912. 


-ll.J  APPLICATION   FOR  REGISTRATION  41 

11.  (Sec.  11.)     Order  that  notice  of  filing  of  petition  be  given. 
[Title.] 

The  court  having  duly  considered  the  petition  in  this  case  (and 
the  abstract  of  title  furnished  herein  and  the  report  of  J.  M.,  the 
examiner  of  titles  to  whom  the  abstract  was  heretofore  referred)  f 
and  it  appearing  to  the  court*  that  the  title  to  the  land  in  said 
petition  described  is  substantially  as  alleged  therein,  it  is  now 
ordered  that  notice  of  the  filing  of  said  petition  be  given,  as  pro- 
vided in  the  act  for  registration  of  titles,  directed  to  all  persons 
named  in  said  petition  as  having  an  interest  in  the  land,  and  also 
to  the  following  named,  who  appear  from  the  abstract  of  title,40 
(or,  the  report  of  the  examiner  of  titles),47  to  have  an  interest 
in  the  land,  viz :  J.  R.  and  L.  B. ;  and  to  all  persons  known  and 
unknown48  who  have  or  claim  to  have  an  interest  in,  or  lien  upon 
said  land,  and  to  all  whom  it  may  concern. 

And  it  appearing  that  the  land  is  bounded  by  a  public  way, 
and  that  the  petitioner  prays  to  have  the  line  thereof  determined,49 
it  is  ordered  that  notice  be  given  to  the  mayor  (or  other  presiding 

officer)  of in  which  such  way  is  situated, 

(or  if  outside  of  an  incorporated  city  or  town,  to  the  presiding 
officer  of  the  board  of  supervisors.49 

The  notice  attached  hereto  is  approved.50.  And  it  is  ordered 

that  said  notice  be  published  in  the ,  a  newspaper 

of  general  circulation,  published  in  this  county,46  once  a  week  for 
four  successive  weeks,  and  service  made  as  provided  by  the  act 
aforesaid. 

12.  (Sec.  11.)     Report  of  examiner  approved  by  the  court,  at 

this  time,  and  notice  ordered,  use  Entry  No. 
[Title.] 

If  the  report  of  the  examiner  is  approved  by  the  court,  at  this 
tim-e,  and  notice  ordered,  use  Entry  No.  29,  Sec.  ip. 


<«By  Sec.  12. 

"Sec.  19  of  the  Minnesota  act  provides  "That  all  persons  named  in 
the  application,  or  found  by  the  report  of  the  examiner,  as  having  any 
lien,  incumbrance,  right,  title  or  interest  in  the  land  shall  be  known  as 
defendants,"  and  it  was  held  by  the  court  that  the  provision  that  the 
summons  shall  be  issued  by  order  of  the  Court,  and  attested  by  the 
Clerk,  does  not  require  that  the  defendant,  to  be  mentioned  in  the  sum- 
mons, shall  be  named  in  the  order.  Dewey  vs.  Kimball,  89  Minn.  454. 

«»By  Sec.  16  the  decree  ordering  registration  is  conclusive  against 
all  persons,  known  and  unknown,  and  therefore  the  notice  of  the  filing 
of  the  petition  should  embrace  all. 

">By  Sec.  13.  Also  if  the  land  borders  on  a  navigable  stream  or  an 
arm  of  the  sea,  notice  must  be  given  to  the  Attorney  General  of  the 
State. 

8°See  form  of  notice,  15,  Sec.  12.  This  clause  may  be  omitted  here 
and  the  notice  prepared  in  accordance  with  the  order. 


42  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.   12- 

13.  Order  refusing  notice  and  dismissing  petition. 
[Title.] 

As  in  Entry  No.  n  to  *  and  continue) — that  the  title  to 
the  land  described  in  the  petition  is  not  so  vested  in  said  appli- 
cant as  to  authorize  the  registration  thereof  in  him,  his  applica- 
tion is  therefore  dismissed  at  his  cost. 

14.  Order  refusing  notice  and  dismissing  application,  on  report 

of  Examiner  of  Titles.61 

As  in  Entry  No.  n  to  f  and  continue} — and  the  said  J.  M. 
having  certified  his  opinion  that  the  title  of  the  land  is  not  so 
vested  in  the  applicant  as  to  authorize  its  registration  in  him, 
the  said  report  is  hereby  approved  and  confirmed  as  the  finding 
of  the  court,  and  the  application  for  registration  of  such  title  is 
dismissed. 

And  a  fee  of  $ to  said  examiner  is  allowed  as  a  part  of 

the  costs  in  this  case,  which  costs  the  applicant  is  ordered  to  pay. 

Sec.  12.  NOTICE  AND  SERVICE  THEREOF  : — When  the  court  shall 
order  notice  given,  a  notice  [15.]  must  be  issued,  under  the  seal  of 
the  court,  which  shall  contain  the  name  of  the  court  and  the 
county  in  which  the  action  is  brought,  the  name  or  names  of  the 
applicant  or  applicants  and  a  particular  description  of  the  land 
involved,  which  notice  shall  be  directed  to  all  parties  appearing 
by  the  petition  or  the  petition  and  abstract,  or  by  the  report  of 
the  examiner  of  titles,  if  any,  to  have  any  interest  in  the  land 
or  any  part  thereof,  (a)  and  which  notice  shall  contain  a  state- 
ment that  the  petition  has  been  filed  by  the  applicant  or  applicants 
for  the  registration  of  the  title  to  the  land  described  therein  as 
provided  by  this  act  (b)  and  praying  for  a  decree  declaring  the 
applicant  or  applicants  to  be  the  owner  in  fee  of  such  land  in 
accordance  with  the  prayer  of  said  petition  (c)  and  which  notice 
shall  direct  all  whom  it  may  concern  to  appear  and  answer  said 
petition  within  ten  days  after  personal  service  if  served  within  the 
county,  or  within  thirty  days  if  served  elsewhere,  and  that  other- 
jwise  the  court  will  grant  said  petition  and  direct  registration  of 
the  title  to  said  land  in  accordance  with  the  terms  of  this  act  and 
that  said  person  so  served  will  be  forever  barred  from  disputing 
the  same. 

(d)  When  the  notice  is  issued,  service  thereof  shall  be  made 
as  follows :  In  all  cases  said  notice  shall  be  published  in  a  news- 
paper of  general  circulation  published  in  the  county,  to  be  desig- 
nated by  the  court  for  four  successive  weeks;  if  the  notice  be 
published  in  a  daily  newspaper,  publication  therein  once  a  week 
for  four  successive  weeks  shall  be  sufficient.52  [16.] 

"Where  the  proof  does  not  authorize  the  registry  of  the  title,  the 
application  should  be  dismissed.  Glos  vs.  Cessna,  207  111.  69.  Glos  vs. 
Holberg,  220  111.  167. 

"Failure  to  republish  the  notice  after  amendment  of  the  description 


-12.]  APPLICATION  FOR  REGISTRATION  43 

(*)  All  parties  who  have  not  joined  in  the  petition  or  as- 
sented thereto  in  writing  and  who  appear  by  the  petition  or  peti- 
tion and  abstract  or  report  of  the  examiner  of  titles  to  be  inter- 
ested in  the  fee,  all  occupants  named  in  the  petition  and  the  hus- 
band and  wife  of  the  applicant,  if  married,  shall  be  personally 
served  [17.]  with  a  copy'of  the  notice,  attached  to  a  copy  of  the 
petition  if  they  reside  in  the  state  and  can,  with  reasonable  dili- 
gence, be  found  and  served  therein,  (f)  All  owners  of  adjoining 
lands  who  have  not  given  their  written  consent  to  the  hearing  of 
the  petition  and  who  reside  in  the  state  and  can,  with  reasonable 
diligence,  be  found  and  served  therein,  shall  be  served  with  a 
copy  of  said  notice,  without  a  copy  of  said  petition,  personally. 

(g)  As  to  all  persons  who  have  not  joined  in  the  petition  or 
who  have  not  in  writing  assented  to  the  hearing  thereof,  who  do 
not  reside  in  the  state  or  who  can  not,  with  reasonable  diligence, 
be  found  and  served  therein,  a  copy  of  such  notice,  without  a 
copy  of  the  petition,  shall,  within  thirty  days  after  the  first  pub- 
lication of  such  notice,  be  sent  to  such  party  at  his  last  known 
place  of  residence,  by  mail,  postage  prepaid  [18.],  and  if  his  last 
known  place  of  residence  can  not  with  reasonable  diligence  be 
ascertained,  then  such  notice  must  be  mailed  to  him  in  care  of 
the  county  clerk  of  the  county  in  which  the  land  is  situated;  (/») 
provided,  however,  that  as  to  all  such  persons  so  to  be  served  by 
mail  who  appear  by  the  petition  or  petition  and  abstract  or  re- 
port of  the  examiner  of  titles  to  be  interested  in  the  fee,  a  copy 
of  the  petition  shall  be  attached  to  the  copy  of  the  notice  mailed 
to  them  as  herein  provided,  (»')  provided,  further,  that  no  copy 
of  abstract,  order  or  map  need  be  served  with  any  notice. 

(/)  All  persons  who  claim  an  interest  may  appear83  and  object 
to  the  granting  of  the  application  [19.]  and  if  such  objection  is 
sustained,  the  costs  of  the  same  shall  be  paid  by  the  applicant  ;  if 
not,  by  the  person  so  objecting. 

of  the  lots,  as  given  in  the  application,  is  not  fatal,  where  all  the  parties 
who  had,  or  claimed,  to  have  any  interest  in  the  lots  were  personally 
served  by  summons  or  entered  their  appearance.  Tower  vs.  Glos,  256 
111.  121. 

Registration  not  barred  by  failure  to  properly  serve  by  publication, 
defendants  who  had  no  interest,  or  were  only  nominal  defendants. 

Where  a  party  to  the  suit  releases  or  quit  claims  his  interest  pend- 
ing the  suit  and  prior  to  the  entry  of  a  decree  therein,  the  question 
whether  jurisdiction  has  been  properly  acquired  over  his  person  be- 
comes of  no  importance.  O'Laughlan  vs.  Covell,  222  111.  162. 


SEEMS,  that  when  a  person  who  has  a  right  to  appear  in  such 
action  (for  registration  of  title)  has  not  been  named  as  a  defendant  by 
the  plaintiff,  the  orderly  proceeding  is  for  him  to  enter  his  appearance, 
demand  a  copy  of  the  complaint,  and  to  answer  it  within  the  time 
allowed. 

The  action  is  in  rem,  and  the  judgment  entered  therein  is  conclusive 
upon  all  the  world.  As  the  statute  gives  to  every  person  whose  inter- 
ests may  be  affected  by  the  judgment  the  right  to  appear,  such  person 


44  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.    12- 

(k)  The  time  for  appearance  shall  be  ten  days  after  personal 
service  within  the  county ;  thirty  days  after  personal  service  out 
of  the  county  and  in  the  state ;  all  persons  not  required  by  this 
section  to  be  served  personally  shall  have  sixty  days  after  the 
first  publication  of  such  notice  within  which  to  appear. 

(/)  All  persons  having  or  claiming  any  interest  in  the  land 
or  any  part  thereof  may  assent  in  writing  [20.]  to  the  registration 
thereof,  and  the  person  thus  assenting  need  not  be  named  as  a 
defendant  in  the  registration  proceeding,  or,  if  already  named  as 
a  defendant,  need  not  be  served  with  notice  therein.  Such  assent 
shall  be  executed  and  acknowledged  in  the  manner  now  required 
by  law  for  the  execution  and  acknowledgment  of  a  deed  and  shall 
be  filed  with  the  clerk  of  the  court.54 

15.     (Sec.  12.)  Notice  of  filing  of  petition. 

In  the  Superior  Court    of    the 
State  of  California,  in  and  for 

the  County  of „ 

[Title.] 

(Naming  all  the  applicants  and  defendants.) 

The  State  of  California  to  the  above  named  defendants,  and 
to  all  persons,  known  and  unknown,  who  have  or  claim  any 
interest  in,  or  lien  upon  any  part  of  the  land  described  herein, 
and  to  all  whom  it  may  concern — Greeting: 

You  and  each  of  you  are  hereby  notified  that  the  above  named 

petitioners  did  on  the day  of ,  19 ,  file 

in  the  office  of  the  County  Clerk  of  said  county  their  verified 
petition  for  the  registration  of  the  title  to  the  lands  described 
therein,  and  hereinafter,  as  provided  by  the  act  therefor,  enacted 
by  the  people  of  the  State  of  California  at  the  general  election 
held  November  3,  1914,  and  praying  for  a  decree  declaring  the 
applicants  to  be  the  owners  in  fee  of  such  lands  described  as 


need  not  apply  to  the  court  for  leave  to  appear,  nor  can  that  right  be 
determined  by  the  plaintiff.  Sunderman  vs.  People,  148  N.  Y.  124. 

An  abutting  owner  has  an  absolute  right  to  appear  and  answer  the 
complaint.  Ib. 

Where  an  abutting  property  owner  held  an  easement  in  the  property 
sought  to  be  registered,  to  the  extent  of  a  right  to  support  a  party  wall, 
and  was  not  made  a  party  to  the  registration  proceedings,  he  was  en- 
titled to  appear  in  the  action  and  assert  his  easement.  Hawes  vs.  U.  S. 
Trans.  Co.,  127  N.  Y.  S.  632. 

54A  defendant  to  an  application  for  registration  of  title  may  consent 
in  writing,  to  the  entry  of  a  decree  of  registration  and  in  such  case  it 
is  not  necessary  to  have  summons  issued  against  him  or  that  he  have 
any  opportunity  to  be  heard,  nor  will  he  be  permitted  to  appeal  from 
such  decree  or  assign  error  upon  it. 

If  he  attaches  his  consent  to  the  decree,  to  the  application  itself, 
it  is  sufficient,  and  it  is  not  material  whether  the  statute  expressly  pro- 
vides that  the  consent  shall  be  evidenced  in  that  manner.  Mooney  vs. 
Valentynnovics,  262  111.  355. 


-12.]  APPLICATION   FOR  REGISTRATION  45 

belonging  to  each  of  them  respectively,  in  accordance  with  the 
prayer  of  said  petition. 

ONE :  The  land  claimed  as  belonging  to  the  petitioner  D.  B. 
is  described  as  follows:  (Describe  as  in  the  petition.) 

TWO :  The  land  claimed  as  belonging  to  the  petitioner  A.  M. 
is  described  as  follows,  etc. 

You  are  hereby  directed  to  appear  and  answer  said  petition 
within  ten  days  after  personal  service  of  this  notice  upon  you,  if 
served  within  this  county,  or  thirty  days  after  personal  service 
out  of  the  county  and  within  the  State,  or  within  sixty  days  after 
the  first  publication  of  this  notice,  if  it  has  not  been  personally 
served  upon  you  in  this  State.  And  if  you  fail  to  so  appear  and 
answer  and  show  cause  why  said  petition  should  not  be  granted 
the  court  will  grant  said  petition  and  direct  registration  of  such 
land  in  accordance  with  the  terms  of  said  act,  and  you  will  be 
forever  barred  from  disputing  the  same. 

Witness  the  Hon ,  Judge. 

Given  under  my  hand  and  the  seal  of  said  court,  this 

day  of ,  19 

[SEAL.] 

H.  J.  L., 
County  Clerk.65 

C.  and  C,  Attorneys  for  Applicant. 
First  publication ,  19 

16.     (Sec.  12.)     Publication  of  notice  approved.56 
(Title.) 

Affidavit  of  publication  having  been  filed  in  this  case  showing 
that  notice  of  the  filing  of  the  petition  for  registration  was  duly 

published  for  four  successive  weeks,  on  and  after  the 

day  of ,  19 ,  in  the a  news- 
paper of  general  circulation  published  in  this  county,  and  the 
court  finding  such  publication  and  the  evidence  thereof  in  all 
respects  regular  and  according  to  law  and  the  former  order  of 
this  court,  does  hereby  approve  the  same. 

By  Sec.  1707,  C.  C.  P.,  a  citation  must  be  served  in  the  same 
manner  as  a  summons  in  a  civil  action,  and  by  Sec.  410,  C.  C.  P., 
summons  may  be  served  by  the  sheriff  or  by  any  person  over 
eighteen  years  of  age,  not  a  party  to  the  action.  By  Sec.  415 

"Citations  must  be  issued  by  the  clerk,  under  the  seal  of  the  court. 
Sec.  1707,  Code  of  Civil  Procedure. 

8«Sec.  2010,  Code  of  Civil  Procedure,  provides  that  evidence  of  the 
publication  of  a  document  or  notice  to  be  published  in  a  newspaper 
may  be  given  by  the  affidavit  of  the  publisher  of  the  newspapers,  or  his 
foreman,  or  principal  clerk,  annexed  to  a  copy  of  the  document  or  notice 
specifying  the  times  when,  and  the  paper  in  which  the  publication  was 
made,  but  in  all  cases  it  is  better  to  have  an  order  of  the  court  approv- 
ing the  publication. 


46  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.   12- 

proof  of  service  by  a  person  other  than  the  sheriff  must  be  made 
by  his  affidavit. 

17.    Affidavit  of  sen'icc  of  notice  by  other  than  sheriff. 
State  of  California,  )  ss 


County  of 

J.  D.,  being  duly  sworn,  deposes  and  says,  that  he  was  at  the 
time  of  service  of  the  papers  herein  referred  to,  a  citizen  of  the 
United  States,  over  the  age  of  eighteen  years,  and  not  a  party 
to  the  within  named  action  ;*  that  he  personally  served  the  within 
notice  on  the  hereinafter  named  defendants,  by  delivering  to  and 
leaving  with  each  of  said  defendants  personally,  in  the  county  of 
..........................................  ,  State  of  California,  at  the  times  set  opposite 

their  respective  names,  a  copy  of  said  notice  (attached  to  a  copy 

of  the  petition  referred  to  in  said  notice). 

Names  of  defendants  served  Time  of  service. 

Fees  for  service,  $  ..................       Mileage,  $  ..................       Total,  $.  ................. 

(Subscribed  and  sworn  to.) 

18.    Affidavit  of  service  by  mail,  by  other  than  sheriff. 

Same  as  in  above  to  *  and  continue)  :  that    he    deposited     a 
copy  of  the  within  notice  in  the  United  States  postoffice  at  ............ 

..............................  in  a  sealed  envelope,  postage  prepaid,  addressed  to 

each  of  the  defendants  hereinafter  named  at  his  last  known  place 
of  residence,  on  the  dates  and  directed  to  the  city  or  town  set  op- 
posite his  name  : 

City  or  Town 
Names  of  persons.  Date  of  mailing.  to  which  sent. 


(Subscribed  and  sworn  to.) 

When  the  place  of  residence  of  the  defendant  can  not  with 
reasonable  diligence  be  ascertained,  and  the  notice  is  mailed  in 
care  of  the  county  clerk  of  the  county  where  the  land  is  situated, 
make  the  affidavit  accordingly,  stating  the  reason. 

19.     Ansiuer,  objecting  to  registration. 
( Title) 

O.  D.,  one  of  the  parties  claiming  an  interest  in  the  land  sought 
to  be  registered  in  this  case,  now  by  his  counsel,  J.  E.,  for  answer 
to  the  application  for  registration  of  the  title  to  said  land  comes 
and  objects  thereto  and  for  cause  says:  (State  cause  of  objec- 
tion. ) 

Wherefore  said  O.  D.  prays  the  court  that  the  registration 
asked  for  by  the  applicant  be  refused  and  his  petition  dismissed 
at  cost  of  the  applicant,  and  for  such  -other  relief  as  shall  be  ac- 
cording to  equity. 

(Verify  as  in  other  cases.) 


-12.]  APPLICATION  FOR  REGISTRATION  47 

20.     (Sec.  12.)     Assent  to  registration  by  person  claiming  inter- 
est." 

In  the  Superior  Court  of  the  State  of  California,  in  and  for  the 
County  of 

D.  B.  et  al,  \  M 

Applicants.  I 

ys.  f      Petition  for  Registration  of 

C.  H.  D.  and  M  A.  D.,  Title  to  Land 

Defendants  J 

We,  the  undersigned,  claiming  an  interest  in  the  land  de- 
scribed in  the  petition  for  registration  of  title,  filed  in  the  above 
case,  viz.:  (describe  the  land)  do  hereby  give  our  assent  to  the 
registration  thereof  as  in  said  petition  prayed  for. 


State  of  California,  )   ss 


County  of 

On  this day  of ,  19 ,  before  me,  a 

Notary  Public,  in  and  for  said  County  and  State,  personally  ap- 
peared  _ and known  to  me  to  be  the 

persons  whose  names  are  subscribed  to  the  foregoing  instrument 
of  assent  and  acknowledged  that  they  executed  the  same. 

Witness  my  hand  and  official  seal. 


Notary  Public  in  and  for  said  County  and  State. 
[SEAL.] 

Sec.  13.  GUARDIAN  AD  LITEM. — PUBLIC  WAY,  ETC.] — Upon  the 
petition  of  the  applicant  or  of  any  person  interested  in  the  pro- 
ceedings, the  court  shall  appoint  a  disinterested  person  to  act  as 
guardian  ad  litem  for  minors  and  other  persons  under  disability 
and  for  all  persons  not  in  being  who  may  appear  to  have  any 
interest  in  or  lien  upon  the  land.  [21.] 

(a)  If  the  petition  prays  to  have  the  line  of  any  public  way 
determined,  notice  shall  be  given  to  the  mayor  or  other  presiding 
officer  of  any  incorporated  city  or  town  in  which  such  way  is 
situated,  or  if  such  way  be  situated  outside  of  any  incorporated 
city  or  town,  then  to  the  chairman  or  presiding  officer  of  the 
board  of  supervisors  of  the  county  in  which  such  way  lies,  by 
delivering  to  such  mayor  or  other  presiding  officer  or  to  the 
chairman  or  presiding  officer  of  such  board  of  supervisors  a  copy 
of  such  notice  personally. 

(b)  If  the  land  borders  on  a  navigable  stream  or  on  an  arm 
of  the  sea,  or  if  it  otherwise  appears  from  the  application  or 
the  proceedings  that  the  state  may  have  a  claim  adverse  to  that 


also,  assent  attached  to  petition. 


48  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.    13- 

of  the  applicant,88  notice  shall  be  given  in  the  same  manner  to 
the  attorney  general. 

(c)  The  court  may  also  cause  such  other  or  further  notice 
of  the  application  to  be  given  as  it  may  deem  necessary  and 
proper. 

21.     (Sec.  13.)     Appointment  of  guardian  ad  litem. 
(Title.) 

It  appearing  to  the  court  that is  a  minor 

(or  under  other  disability),  and  that  he  has  an  interest  in  this 

proceeding,  now  on  petition  of the  applicant 

herein,  (or,  who  is  interested  in  these  proceedings),  H.  B.,  a 
disinterested  person,  is  hereby  appointed  guardian  ad  litem  for 
said  minor.  And  now  comes  the  said  H.  B.  and  accepts  said 
appointment  (and  files  his  answer  herein). 

Sec.  14.  HEARING  OF  PETITION.] — After  the  notice  required  to 
be  given  by  this  act  has  been  given  and  the  time  for  all  persons 
to  appear  has  expired,  the  court  shall  set  the  petition  down  for 
hearing  upon  notice  to  all  persons  who  have  appeared,  as  is 
required  in  other  civil  actions,  and  shall  proceed  to  determine 
the  title  to  all  the  land  described  in  the  petition  and  of  all  persons 
who  may  have  any  interest  therein  or  in  any  part  thereof,89  and 

"Under  the  provision  in  the  Minnesota  act,  that  "when  the  State 
has  some  interest  in  or  claim  upon  the  land  it  shall  be  joined  as  a  party 
in  said  proceedings,"  it  was  held  that  tax  liens  held  by  the  State  were 
not  interests  in,  or  claims  upon  the  land  on  which  they  are  a  lien,  with- 
in the  meaning  of  the  law.  Any  other  construction  would  entail  much 
expense  on  the  State.  National  Bank  and  Security  Company  vs. 
Daskan,  91  Minn.  81. 

In  1905  the  act  as  above  stated  was  amended,  as  follows :  "Whenever 
in  the  opinion  of  the  examiner,  the  State  has  any  interest  in,  or  lien 
upon,  the  land  the  State  shall  be  joined  as  a  party  ....  in  order  that 
its  interest,  estate,  or  lien  may  be  denned  and  preserved." 

Under  this  wording  it  was  held,  that  a  tax  lien  held  by  the  State 
was  within  the  terms  of  the  amended  section  and  the  State  a  necessary 
party.  B.  and  S.  Co.  vs.  Hopkins,  96  Minn.  119. 

o»The  object  and  purpose  of  the  Torrens  act  was  to  provide  a  speedy 
and  summary  method  of  determining  rights  and  interests  in  registered 
property,  and  to  authorize  the  court  in  proceedings  thereunder  to  hear 
and  determine  all  controversies  respecting  the  title,  and  by  proper  de- 
cree to  definitely  fix,  establish  and  declare  the  title,  rights  and  interests 
of  all  interested  parties.  It  can  determine  and  decree  the  existence  of 
a  mechanics  lien,  but  not  order  its  foreclosure.  Reed  vs.  Siddall,  94 
Minn.  216. 

By  Sees.  15  and  25  of  the  Illinois  Torrens  act,  the  court  is  specifically 
authorized  to  remove  clouds  from  titles,  by  decree  in  registration  pro- 
ceedings. The  California  act  does  not  contain  such  specific  provision, 
but  the  power  of  the  court,  as  set  forth  in  this  section,  when  called  into 
exercise,  would  appear  to  be  sufilcient  for  the  determining  and  settling 
of  all  questions,  and  consequently  the  removal  of  all  clouds.  The  most 
common  cloud  upon  titles,  as  appears  from  the  cases  reported  in  the 
Supreme  Court  of  Illinois,  is  that  of  a  tax  deed  or  tax  sale,  which  the 
applicant  seeks  to  have  set  aside. 


-15.]  DECREE  OF  REGISTRATION  49 

whether  or  not  the,  or  any  part  of  the,  land,  the  title  to  which  is 
so  determined  is  the  separate  or  community  property  of  the  party 
found  to  be  the  owner,60  and  whether  or  not  the  title  to  the  or 
any  part  of  the  land  is  held  in  any  special  capacity  and  shall  make, 
give  and  enter  a  decree,81  confirming  the  title  of  the  person  found 
to  be  the  owner  whether  he  be  the  applicant  or  any  other  person 
who  may,  in  the  proceedings,  ask  to  have  his  title  registered  and 
shall  order  the  registration  of  all  such  land.62  [22.] 

(a)  Upon  the  trial  of  any  issue  of  fact  raised  by  the  verified 
pleading  of  any  person  claiming  by  such  pleading  to  have  an  in- 
terest in  the  or  any  part  of  the  land  or  appurtenances,  such  issue 
shall,  upon  demand  of  any  party  appearing,  be  submitted  to  a 
jury  in  the  same  manner  and  to  the  same  extent  as  such  issue 
can,  under  general  law  and  the  constitution  of  the  state,  be  sub- 
mitted to  a  jury  trial  in  like  matters  and,  when  so  submitted, 
the  verdict  of  the  jury  shall  have  the  same  force  and  effect  as  is 
provided  by  general  law  upon  the  submission  of  like  issues  to  a 
jury. 

DECREE  FOR  REGISTRATION. 

Sec.  15.  Every  decree  shall  state  whether  or  not  the  owner  of 
the  land  directed  to  be  registered  is  married  or  unmarried  and,  if 
married,  the  full  name  of  the  spouse;  (a) If  the  owner  is  under  a 
disability  it  shall  state  the  nature  of  the  disability  and 
the  person  acting  for  him  and  the  source  of  his  author- 
ity, and  if  a  minor,  it  shall  state  his  age  and  in  whose  cus- 
tody his  estate  then  is;  (&)  it  shall  also  contain  an  accurate  de- 
scription of  the  land  to  which  the  court  shall  determine  title  and 
shall  set  forth  the  estate  of  the  owner  and  also,  in  such  a  manner 
as  to  show  their  relative  priority,  all  particular  estates,  mortgages, 
easements,  liens,  attachments  and  other  incumbrances,  including 
the  rights  of  husband  or  wife,  if  any,  to  which  the  land  or  the 
owner's  estate  therein  is  subject  and  may  contain  any  other  facts 
properly  to  be  determined  by  the  court. 


«<>See  note  to  Sec.  5  as  to  community  property. 

«iA  decree  registering  title  after  a  full  hearing  of  the  cause,  is  a 
final  decree,  and  after  the  adjournment  of  the  term  the  court  loses 
jurisdiction  of  the  cause  and  has  no  power  at  a  subsequent  term  to 
vacate  or  set  aside  the  decree,  except  as  to  matters  of  form,  or  for 
clerical  errors  of  the  clerk.  Mooney  vs.  Valentynovicz,  255  111.  118. 

«2On  application  for  registration  of  certain  described  property,  a 
decree  may  be  entered  for  the  registration  of  any  part  thereof,  even 
though  it  be  less  in  extent  than  the  premises  described  in  the  applica- 
tion. Glos.  vs.  Holberg,  220  111.  167.  Glos  vs.  Murphy,  225  111.  58. 

Where  proof  does  not  authorize  the  registration  of  the  title  the 
application  should  be  dismissed.  Glos  vs.  Cisna,  207  111.  69;  Glos  vs. 
Holberg,  220  111.  167. 


50  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.   15- 

(c)  The  decree  shall  be  stated  in  a  form  convenient  for  tran- 
scription upon  the  certificate  of  title68  and  any  lien  or  other  charge 
against  the  property,  if  recorded,  shall  be  referred  to  by  book  and 
page  of  the  record. 

(d)  Any  party  aggrieved  by  such  decree  may  appeal  therefrom 
in  the  manner  now  or  hereafter  provided  by  law  for  appeals  in 
civil  actions;64  (c)  such  decree  shall  be  filed  with  the  clerk  and  a 
certified  copy  thereof  filed  with  the  registrar,  who  shall  thereupon 
issue  a  certificate  of  title  to  such  person  declared  by  said  decree 
to  be  the  owner  of  any  parcel  of  land  in  severalty  and  said  regis- 
trar's act  in  filing  said  decree  and  issuing  said  certificate  shall 
have  the  effect  of  bringing  said  land  under  the  operation  of  this 
act  as  herein  provided  as  of  the  date  of  filing  of  the  petition. 

(/)  Said  certificate  shall  contain  a  description  of  the  property 
registered  and  shall  also  show  the  character  of  the  ownership  and 
whether  or  not  the  land  is  separate  or  community  property  and 
if  community  the  names  of  both  husband  and  wife,  the  nature, 
amount  and  order  of  the  liens  and  incumbrances  and  other  charges 
against  the  same  and  any  other  interest  or  condition  which  shall 
be  found  to  exist  by  the  decree. 

22.     (Sees.  14  and  15.)     Decree  for  registration. 
[Title.] 

After  due  notice  to  all  parties  in  interest  of  the  hearing  of  this 

case  it  came  on  to  be  heard  this  day  of ,  19 , 

upon  the  petition  for  registration,  (Make  statement  of  the  plead- 
ings), and  upon  the  exhibits  and  testimony;  and  upon  full  con- 
sideration thereof  the  Court  finds : 

A. 

That  notice  of  the  filing  of  the  petition  herein  was  duly  pub- 
lished in  the  (Name  newspaper),  as  required  by  law  and  in  ac- 
cordance with  the  former  order  of  this  court;  that  all  persons 

esit  would  appear  that  this  clause  contemplates  that  the  decree,  or  a 
synopsis  of  it,  should  be  entered  on  the  certificate  of  title.  But  neither 
this  section,  nor  Sec.  23  in  specifying  the  requirements  for  the  certifi- 
cate, nor  the  form  permitted  by  Sec.  24,  mention  the  decree  as  a  part 
of  the  certificate.  It  is  therefore  likely  that  a  reference  in  the  certificate 
to  the  decree,  will  be  sufficient. 

6<Sec.  939,  Code  of  Civil  Procedure.  Appeal  from  a  final  judgment 
in  an  action  or  special  proceeding  commencing  in  the  court  in  which 
the  same  is  rendered,  must  be  taken  within  six  months  after  the  entry 
of  judgment. 

In  an  application  to  register  title  to  a  large  number  of  lots  if  the 
defendant  claims  title  to  only  two  of  such  lots,  a  decree  registering 
title  to  the  lots  in  which  defendant  had  no  interest  and  continuing  the 
case  as  to  the  other  two,  without  adjudging  costs  to  the  defendant, 
does  not  affect  the  defendant,  and  he  is  not  entitled  to  an  appeal  or  a 
writ  of  evidence  in  advance  of  final  termination  of  the  question  of  title 
to  the  two  lots  he  claims.  Mundt  vs.  Glos,  231  111.  158. 


-15.]  DECREE  OF  REGISTRATION  51 

interested  in  this  action  have  either  filed  their  assent  to  the  regis- 
tration herein,  or  have  been  duly  and  properly  served  with  notice 
of  the  filing  of  the  petition  and  that  the  time  for  their  appearance 
has  expired  and  that  all  such  persons,  known  and  unknown,  are 
properly  before  the  court ;  that  the  default  of  all  persons  so  served, 
who  have  not  appeared  in  answer  thereto,  has  been  entered,  and 
as  to  them  the  allegations  of  the  petition  are  taken  as  confessed 
and  true. 

ONE. 

The  Court  finds  that  the  petiitnoer,  D.  B.,  65  who  resides  at — 

and  whose  occupation  is  ,  is  of  the  full  age  of 

twenty-one  years  and  not  under  any  legal  disability ;  that  he  is 
not  married  (or,  that  he  is  married  and  the  full  name  of  his  wife 
is  C.  B.) 

*The  Court  further  finds  from  the  abstract  of  title,  (the  report 
of  F.  G.  B.,  the  examiner  of  titles  to  whom  said  abstract  was  re- 
ferred), and  the  evidence  that  the  said  D.  B.  is,  as  claimed  in  his 
application,  the  owner  in  fee  simple  of  the  land  therein  described, 
That  it  is  his  separate66  property  and  is  (or,  is  not)  sub- 
ject to  homestead.  The  land  above  referred  to  is  described  as 
follows,  to-wit:  (Describe). 

If  the  title  is  based  on  adverse  possession,  as  provided  for  in 
Sec.  6,  find  as  in  the  foregoing  to  *  and  continue: 

The  Court  further  finds  that  the  land  described  in  the  applica- 
tion of  said  D.  B.  was  acquired  by  him  by  deed  dated 

and  recorded  in  Book ,  page of  the -County 

records,  and  that  he  has  (or,  that  he  and  his  prede- 
cessors in  interest  have)  as  alleged  in  the  petition,  been  in  the 
actual,  exclusive  and  adverse  possession  of  said  land  continuously, 
for  more  than  five  years  next  preceding  the  filing  of  the  petition 
herein,  claiming  to  own  the  same  in  fee  simple  as  against  the 
world,  and  that  he  has  (or,  that  they  have)  paid  all  taxes  of  every 
kind,  legally  levied  or  assessed  against  said  property  during  the 
period  of  such  possession ;  that  the  character  of  such  possession 
has  been  (State  character  and  occupany  so  as  to  bring  it  under 
one  of  the  definitions  required  for  adverse  possession  in  Sees. 
322  et  seq.  of  the  Code  of  Civil  Procedure.  See  not  40  to  Sec.  6.) 
that  the  title  to  said  land  is  thereby  legally  vested  in  the  said  D.  B. 
as  owner  in  fee  simple ;  that  said  land  is  his  separate  property  and 
is  (or,  is  not)  subject  to  homestead  and  is  described  as  follows: 
(describe.) 


•'••"•If  the  application  is  by  two  or  more  persons  as  tenants  in  common 
find  the  undivided  share  of  each.  Each  may  have  a  certificate  for  his 
undivided  share,  by  Sec.  25. 

«6If  it  is  community  property  find  the  fact  and  who  the  community 
owners  are. 


52  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.   15- 

II.  The  Court  finds  that  said  land  is  subject  to  the  following 
estates,  liens,  and  incumbrances,  with  relative  priorities  in  the 
order  here  named,  to-wit: 

On  Parcel  No.  One, 

1st.  Mortgage  to  R.  S.  whose  post  office  address  is , 

for  the  sum  of ,  dated ;  payable 

after  date,  with  interest  at  percent  per  annum,  payable 

Recorded  in  Book ,  page ,  in  the  office  of 

the  Recorder  of  the  County  of ,  California. 

2nd.  Etc.,  etc. 

//  occupied  by  other  than  owner  state  nature  and  terms.  Also 
include  any  of  existing  conditions  noted  under  Sec.  34. 

On  Parcel  No.  Two, 

Etc. 

Two. 

The  Court  finds  that  the  petitioner,  A.  M.,  is  a  minor  of  the  age 

of. years  (Make  statement  as  to  residence,  occupation,  and 

marriage,  as  in  ONE),  and  that  L.  G.,  by  whom  this  application  is 
made,  is  his  legally  appointed  guardian  and  has  the  custody  of  his 
estate. 

Continue  as  from  *  in  ONE. 

THREE. 

The  Court  finds  that  the  petitioner,  A.  E.,  is  the  legally  appoint- 
ed administrator  of  the  said  A.  B.  as  stated  in  his  application ; 
that  the  said  A.  B.  was  in  his  life  time  (Make  statements  as  to 
marriage,  and  other  facts  necessary  to  show  in  whom  the  title  to 
the  land  held  by  A.  B.  is  now  vested.) 

Continue  as  from  *  in  ONE. 

FOUR. 

The  Court  finds  that  the  petitioners,  W.  C.  and  M.  C,  are  hus- 
band and  wife  (State  as  to  residence,  occupation,  age,  and  disa- 
bility and  continue  as  from  *  in  ONE,  and  if  community  property, 
so  find). 

FIVE. 

The  Court  finds  that  the  petitioner,  The  C.  H.  R.  Company,  is 
a  corporation  duly  organized  under  the  laws  of  the  State  of 

,  and  that  L.  A.  is  the  duly  authorized  agent  of  the 

said  Company. 

Continue  as  from  *  in  ONE. 

And  now  the  Court  having  determined  the  title  of  the  several 
applicants  to  the  land  claimed  by  each,  finds  and  so  adjudges, 
that  no  other  person,  firm  or  corporation  has  any  claim  in,  or  to, 
any  part  of  said  tracts  of  land  in  law  or  equity,  in  possession, 
occupancy,  reversion,  expectancy  or  otherwise  adverse  to  the  title 
and  interest  of  the  persons  as  herein  found. 


-16.]  DECREE  OF  REGISTRATION  53 

B. 

Conclusion  of  Law67 

As  conclusion  of  law  the  Court  finds  that  the  applicants  as  here- 
in found  are  entitled  to  have  their  lands  herein  described  brought 
under  the  operation  of  the  act  for  the  certification  of  land  titles, 
etc.,  enacted  by  the  People  of  the  State  of  California  at  the  gen- 
eral election  held  November  3,  1914,  and  it  is  so  adjudged  and 
decreed. 

Decree 

It  is  therefore  adjudged  and  decreed  that  the  title  of  each  of 
the  petitioners  to  the  land,  so  found  to  belong  to  each,  be  con- 
firmed and  registered,  and  it  is  ordered  that  the  Registrar,  upon 
a  certified  copy  of  this  decree  being  filed  with  him,  issue  a  cer- 
tificate of  title  as  provided  by  law,  to  each  of  the  persons  herein 
for  the  land  found  to  belong  to  him  or  her.  And  this  decree 
shall,  as  provided  in  said  act,  forever  quiet  the  title  to  the  land 
herein  ordered  registered  and  be  final  and  conclusive  as  against 
the  rights  of  all  persons,known  and  unknown,  to  assert  any  estate, 
interest,  claim,  lien  or  demand  of  any  kind  or  nature  whatsoever, 
against  said  land  or  any  part  thereof,  except  only  as  herein  found 
and  in  the  act  provided.68 

It  is   further  ordered  that  the  sum  of  $ be  allowed  as 

abstract  fees,  and  the  sum  of  $. as  the  fee  of  the  Examiner 

of  titles,  as  part  of  the  costs  herein,  which  costs  shall  be  paid 
by  the  applicants.    (State  in  what  proportions.) 

Sec.  16.  EFFECT  OF  DECREE: — A  decree  of  the  Court  ordering 
registration  shall  be  in  the  nature  of  a  decree  in  rem,  shall  for- 
ever quiet  the  title  to  the  land  therein  ordered  registered  and 
shall  be  final  and  conclusive  as  against  the  rights  of  all  persons, 
known  and  unknown,63  to  assert  any  estate,  interest,  claim,  lien 
or  demand  of  any  kind  or  nature  whatsoever,  against  the  land  so 


"Sec.  632  of  the  Code  of  Civil  Procedure.  In  giving  the  decision 
the  facts  found  and  the  conclusions  of  law  must  be  separately  stated. 
Judgment  upon  the  decision  must  be  entered  accordingly. 

In  proceedings  to  register  land  under  the  Torrens  Act  the  Court 
should,  where  issue  is  joined,  make  findings  of  fact  and  conclusions  of 
law,  as  in  ordinary  cases.  Owsley  vs.  Johnson,  95  Minn.  168;  Kuby  vs. 
Ryder,  114  Minn.  217. 

«8By  Sec.  16. 


63Held,  that  by  the  phrase  "all  other  persons  or  parties  unknown"  all 
the  world  are  made  parties  defendant  and  shall  be  bound  and  conclud- 
ed by  the  decree  of  registration,  and  further  that  the  decree  shall  be 
binding  and  conclusive  upon  all  persons,  whether  mentioned  by  name 
or  included  in  the  phrase  "all  other  persons  or  parties  unknown." 
Doyle  vs.  Wagner,  108  Minn.  442. 

After  the  expiration  of  the  period  fixed  by  the  statute  a  title  duly 
and  regularly  registered  under  the  Torrens  system  Is,  unless  registra- 
tion was  obtained  by  fraud,  indefeasible.  Baart  vs.  Martin,  99  Minn., 
197. 


54  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.   17- 

ordered  registered  or  any  part  thereof,  except  only  as  in  this  act 
provided. 

REGISTRATION  IN  OTHER  PROCEEDINGS. 

Sec.  17.  Whenever  any  proceeding  is  hereafter  commenced  in 
the  Superior  Court  of  any  county  by  any  person  either  for  them- 
selves or  in  a  representative  capacity,  wherein  it  is  sought  to  quiet, 
establish  title  to,  partition  land  or  to  administer  upon  any  estate 
of  a  deceased  person  where  the  estate  consists  in  whole  or  in 
part  of  land,  and  in  which  proceeding  the  court  has  or  can  acquire 
jurisdiction  of  such  land  in  rem,  any  decree  rendered  in  any  such 
proceeding  quieting  or  establishing  the  title  to  any  land  or  par- 
titioning or  distributing  land  may  order  such  land  registered  un- 
der this  act  whenever,  in  such  proceeding,  notice  of  the  intention 
[25]  to  include  an  order  of  registration  thereof  in  any  such  decree 
shall  have  been  published  and  service  thereof  made  on  all  persons 
interested  in  the  manner  required  by  this  act  and  when,  in  the 
application  for  such  notice  [23]  in  such  proceeding,  the  facts  re- 
quired to  be  set  forth  by  sections  5  and  6  of  this  act  are  alleged. 

By  the  foregoing  Sec.  17,  registration  may  be  decreed  in  pro- 
ceedings in  the  Superior  Court. 

1st.     To  quiet  title. 
2nd.     To  establish  title. 
3rd.     To  partition  land. 

4th.  To  administer  upon  any  estate  of  a  deceased  person,64 
where  the  estate  consists  in  whole  or  in  part  of  land. 

Under  this  section,  there  shall  be : 

a.  An  application  for  notice  of  intention  to  include  an  order 
of  registration  in  the  decree.  In  this  application  the  facts  required 
by  sections  5  and  6  must  be  alleged  as  in  the  petition  for  registra- 
tion, this  application  taking  the  place  of  the  petition  in  proceed- 
ings for  initial  registration. 

b.  Order  of  the  Court  that  notice  be  given  and  published. 

c.  The  Notice,  which  shall  be  published  and  service  thereof 
made  in  the  same  manner  as  provided  for  service  of  notice  of 
filing  a  petition,  by  Sec.  12. 

d.  The  order  of  court,  in  any  decree  rendered  in  any  of  the 
above  named  actions,  that  the  land  be  registered. 


««An  administrator  or  executor  instead  of  filing  an  application  under 
the  above  section,  may  by  Sec.  5,  (q)  file  an  independent  petition  in 
the  Superior  Court,  or  by  Sec.  46,  may  file  a  petition  in  the  Probate 
proceedings  praying  for  the  registration  of  all  land  belonging  to  the 
estate  in  fee  simple. 


-17.]  REGISTRATION    IN    OTHER   PROCEEDINGS  55 

23.  (Sec.   17.)     Application  for  notice  of  intention  to  include 

registration  in  decree. 

(Title  of  case  in  which  proceedings  are  being  had.) 

Now  comes  A.  B.,  the  plaintiff  in  this  action,  and  makes  appli- 
cation to  have  the  land  described  in  the  petition  herein,  to-wit: 
(Describe)  registered  in  this  proceeding-,  under  the  act  for  the 
certification  of  land,  titles,  etc.,  enacted  by  the  People  of  the  State 
of  California,  at  the  general  election  held  November  3,  1914,  and 
sets  forth  the  following  facts:  (State  facts  required  by  Sees. 
5  and  6  as  in  one  of  the  petitions  for  registration.) 

Plaintiff  further  makes  application  to  the  Court  that  notice  of 
his  intention  to  include  an  order  for  registration  in  any  decree 
that  may  be  rendered  herein,  be  given  and  published  as  provided 
by  said  act,  and  for  such  other  relief  as  may  be  equitable  and  just. 

(Verify  as  in  case  of  petition  for  registration.) 

24.  (Sec.  17.)  Order  that  notice  of  intention  to  include  registra- 

tion in  other  proceedings,  be  given. 
(Title  of  case  in  which  proceedings  are  being  had.) 
The  Court  having  duly  considered  the  application  of  A.  B.  for 
registration  in  this  proceeding,  of  the  title  to  the  land  in  the 
petition  and  application  described,  and  for  notice  thereof,  and 
the  court  having  jurisdiction  of  such  land  in  rem,  it  is  ordered 
that  notice  of  the  intention  of  said  A.  B.  to  include  an  order  for 
registration  of  said  land  in  any  decree  that  may  be  rendered  in 
this  case  be  given  as  provided  in  the  act  for  registration  of  titles, 
directed  to  all  persons  named  in  this  action  as  having  an  interest 
in  the  land,  and  to  all  other  persons  known  and  unknown,  who 
have  or  claim  to  have  an  interest  in,  or  lien  upon  any  part  of  said 
land,  and  to  all  whom  it  may  concern. 

The  notice  attached  hereto  is  approved,  and  it  is  ordered  that 
it  be  published  in  The ,  a  newspaper  of  general  circula- 
tion, published  in  this  County,  once  a  week  for  four  successive 
weeks,  and  service  made  as  provided  by  the  act  aforesaid. 

25.  (Sec.   17.)     Notice  of  intention  to  include  registration  in 

other  proceedings. 

In   the   Superior   Court   of 
California,   in   and   for  the 

County  of  „ 

(Title.) 

The  State  of  California  to  the  above  named  defendants,  and  to 
all  persons,  known  and  unknown,  who  have  or  claim  to  have  any 
interest  in,  or  lien  upon  any  part  of  the  land  described  herein  and 
to  all  whom  it  may  concern,  Greeting : 

You  and  each  of  you  are  hereby  notified  that  A.  B.f - 

in  the  above  action,  did,  on  the  day  of ,  19 , 


56  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.   17- 

file  in  this  case  an  application  to  the  Court  for  registration  in 
this  proceeding  of  the  title  to  the  land  described  in  the  petition, 
to-wit:  (Describe)  ;  and  for  an  order  for  notice  of  his  intention 
to  include  registration  herein ;  and  pursuant  to  an  order  of  the 
Court  granted  therefor,  you  are  hereby  notified  of  the  intention 
of  the  said  A.  B.  to  include  an  order  for  registration  of  said  land 
in  any  decree  that  may  be  rendered  in  this  action ;  as  provided  by 
the  act  for  the  certification  of  land  titles,  etc.,  enacted  by  the 
People  of  the  State  of  California  at  the  general  election  held 
November  3,  1914. 

You  are  therefore  directed  to  appear  and  answer  said  applica- 
tion, etc.  (Continue  as  from  *  in  No.  15.) 

Fbr  the  order  for  registration,  include  in  the  decree  rendered 
in  the  action  to  quiet  title,  or  other  action  named  in  Sec.  17,  the 
findings  and  order  for  registration  as  given  in  the  general  decree 
for  registration,  No.  22,  as  far  as  applicable. 

ABSTRACT  REFERRED  TO  EXAMINER  OF  TITLES. 

Sec.  18.  Upon  the  filing  of  the  petition  or  thereafter,  the  court 
may,  in  its  discretion,  appoint  an  examiner  of  titles  to  whom  any 
abstract  or  abstracts  may  be  referred  for  examination  [26.].  Such 
examiner  of  titles  shall  be  an  attorney  in  good  standing,  skilled 
in  the  examination  of  titles  and  admitted  to  practice  before  the 
Supreme  Court  of  the  State  for  at  least  five  years  preceding  his 
appointment.  The  compensation  of  such  examiner  shall  be  agreed 
upon  between  the  applicant  or  other  parties  and  the  examiner 
or  if  not  agreed  upon  shall  be  fixed  by  the  court  and  such  com- 
pensation shall  be  paid  by  the  person  or  persons  in  whose  favor 
registration  is  granted  as  a  part  of  the  cost  of  the  proceedings. 
More  than  one  examiner  may  be  appointed  in  any  county  is  de- 
sired. 

26.  (Sees.  18  and  19.)  Order  referring  case  to  examiner  of 

titles. 

(Title.) 

It  appearing  that  the  abstract  of  title  furnished  in  this  case 
requires  more  time  for  its  consideration  than  can  be  given  by  the 
Court,  it  is  hereby  referred  to  J.  M.,  an  Examiner  of  Titles,  duly 
qualified  therefor  as  required  by  law,  who  is  hereby  appointed  to 
examine  the  said  abstract  and  to  investigate  all  the  facts  per- 
taining to  the  title  of  the  land  described  in  the  petition  herein, 
which  shall  be  brought  to  his  notice ;  and  that  he  make  report  in 
writing,  with  a  certificate  of  his  opinion  on  the  title,  to  this  Court, 
within days. 

EXAMINER  OF  TITLES. 

It  was  said  in  the  case  of  State  ex  rel.  vs.  Westfall,  85  Minn. 
446,  that  the  examiners  provided  for  by  the  Torrens  Act  of  that 


-19.]  EXAMINER    OF    TITLES  57 

State  are  subordinate  officers  or  assistants  of  the  courts,  to  aid 
them  in  the  discharge  of  the  official  duties  imposed  upon  them 
by  the  act. 

The  provision  for  referring  a  case  to  a  title  examiner,  by  Sec. 
18  appears  to  contemplate  cases  only  where  an  abstract  of  title 
has  been  filed.  But  in  many  cases  where  an  abstract  is  not  re- 
quired it  will  be  to  the  advantage  of  all  parties,  and  the  relief  of 
the  court,  that  such  reference  should  be  made. 

Under  such  circumstances  the  court  undoubtedly  may,  as  in 
other  civil  actions,  under  sections  638  and  639  of  the  Code  of 
Civil  Procedure,  send  the  case  to  a  referee  to  ascertain  facts  and 
report.  And  of  course  this  referee  may  be  a  title  examiner,  or 
may  be  a  deputy  registrar,  as  provided  by  Sec.  108.  But  where 
there  is  no  abstract  to  be  examined,  it  would  not  appear  that  the 
referee  must  necessarily  have  the  qualifications  required  of  the 
title  examiner  or  the  deputy  registrar  by  these  sections.  In  such 
cases  an  entry  like  the  following  may  be  made. 

27.     Order  seding  case  to  referee,  to  report  facts. 

(Title.) 

It  appearing  to  the  Court  that  there  are  questions  of  fact  to  be 
investigated  pertaining  to  the  title  of  the  land  described  in  the 
petition  herein  which  can  not  conveniently  be  ascertained  or  de- 
termined by  the  Court,  it  is  therefore  ordered  that  the  case  be 
referred  to  A.  S.  L.,  as  referee  to  investigate  all  the  facts  per- 
taining to  such  title,  which  shall  be  brought  to  his  notice ;  and  that 
he  make  report  in  writing  within  days. 

Sec.  19.  REPORT  OF  EXAMINER: — Whenever  an  Examiner  of 
Titles  is  appointed  and  any  abstract  is  referred  to  him  for  exam- 
ination, he  shall  proceed  to  examine  into  the  title  of  the  land  de- 
scribed in  the  application  and  shall  investigate  all  facts"5  pertain- 
ing to  the  title  which  shall  be  brought  to  his  notice  and  shall  file 
a  written  report  [28.]  with  the  Court  together  with  a  certificate 
of  his  opinion  upon  the  title.66  No  decree  shall  be  entered  by  the 
Court  in  cases  where  a  reference  is  had,  until  the  written  opinion 
of  such  examiner  shall  be  filed.  The  Court  shall  not  be  bound  by 
any  report  of  such  examiner  but  may  require  other  or  further 
proof. 


85just  how  the  facts  are  to  be  brought  to  his  notice  is  not  stated. 
In  the  Illinois  act  full  provision  is  made  for  the  taking  of  testimony, 
with  power  to  administer  oaths  and  examine  witnesses,  by  the  exam- 
iner. And  it  was  said  in  the  case  of  Gage  vs.  Consumers  E.  L.  Co.,  194 
Ills.  30,  that  the  examiner  in  his  relations  to  the  court  and  to  the  case 
referred  to  him,  acts  in  the  same  way  and  under  the  same  rules  as  a 
Master  in  Chancery.  His  rulings  on  questions  of  fact  could  be  contest- 
ed and  objections  filed  before  him  and  exceptions  before  the  trial 
court. 

It  would  certainly  appear  that  similar  powers  should  belong  to  the 
examiner  under  our  act,  in  order  that  full  justice  in  the  investigation 


58  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.   19- 

28.     (Sec.  19.)     Report  of  examiner  of  titles. 

In  the  Superior  Court  of 
the   State   of   California,   in 

and  for  the  County  of 

(Title.) 
To  the  Superior  Court  in  and 

for  the  County  of 

Pursuant  to  an  order  heretofore  entered  in  the  above  entitled 
case  referring  the  abstract  of  title  to  the  undersigned  Examiner 
of  Titles,  I  respectfully  report  that  I  have  carefully  examined 
into  the  title  of  the  land  described  in  the  petition  and  have  in- 
vestigated all  facts  pertaining  to  the  title  which  have  been  brought 
to  my  notice  and  find  the  facts  to  be  as  follows : 

I. 
The  property  of is  correctly  described  in  the  peti- 

by  him  may  be  done,  and  an  impartial  and  Just  report  be  made  to  the 
court.  For  while  the  court  is  not  bound  by  the  report,  (Sec.  19),  much 
additional  time  and  expense  would  be  wasted  by  another  investigation. 

8«If  the  Examiner's  report  contains  sufficient  competent  evidence  to 
support  his  findings,  it  can  not  be  assigned  for  error  that  he  admitted 
incompetent  evidence  over  objection.  It  will  be  assumed  on  appeal  or 
error  that  he  considered  only  the  competent  evidence  in  making  his 
findings.  McMahon  vs.  Rowley,  238  111.  31. 

Objections  to  the  Master's  rulings  on  evidence  should  be  made  be- 
fore his  report  is  returned,  and  if  not  acted  upon  favorably  by  the 
Master  should  be  renewed  as  exceptions  to  the  report  before  the  chan- 
cellor. Glos  vs.  Hoban,  212  111.  222. 

In  a  proceeding  for  registration  of  title  the  same  rules  apply  to  tne 
mode  of  reserving  for  review,  objections  to  the  report  of  the  examiner 
of  titles  as  are  applicable  to  objections  to  the  report  of  the  Master  in 
Chancery.  Ib. 

An  objection  to  the  report  of  the  examiner  of  titles  is  in  the  nature 
of  a  special  demurrer,  and  it  must  point  out  the  grounds  of  the  objec- 
tion with  clearness  and  certainty.  An  objection  that  the  examiner 
erred  in  finding  that  the  applicant  for  initial  registration  of  title  was 
seized  of  a  title  in  fee  is  not  sufficiently  specific  to  preserve  the  ques- 
tion as  to  the  sufficiency  of  the  preliminary  proof  for  the  admission  of 
abstract  of  title  in  evidence.  Ib. 

A  finding  of  fact  by  the  examiner  of  titles  in  a  title  registration 
proceeding,  must  be  regarded  by  the  court  of  review  as  conclusive, 
where  it  is  not  excepted  to  Keeney  vs.  Glos,  258  111.  555. 

Where  the  defendant  to  an  application  to  register  title  does  not 
object  to  admission  in  evidence  of  preliminary  proof,  but  asks  and 
obtains  permission  to  file  objection  later,  he  is  not  entitled,  after  the 
applicant's  testimony  is  closed,  to  urge  before  the  examiner  specific 
objections,  in  writing,  which  should  have  been  made  orally  at  the  time 
the  evidence  was  offered.  Bjork  vs.  Glos,  256  111.  447.  Carlson  vs.  Glos, 
257  111.  149. 

Exceptions  to  the  report  of  an  examiner  of  titles  must  not  be  so 
general  as  to  require  a  search  through  the  evidence  to  ascertain 
whether  they  are  well  taken,  but  must  point  out  the  evidence  objected 
to  and  the  reasons  for  the  objection.  Same  case. 

Objections  to  the  competency  of  a  witness  must  be  made  before 
the  examiner.  O'Laughlan  vs.  Covell,  222  111.  162. 


-19.]  EXAMINER    OF    TITLES  59 

tion  and  abstract  and  consists  of  (Describe  location  and  surround- 
ings.} 

II. 

The  records  show  the  title  of  the  applicant, ,  to  be 

derived  as  set  forth  in  the  petition.   (Make  any  special  finding 
required. ) 

III. 

Find  whether  the  land  is  separate  or  community  property,  and 
whether  or  not  subject  to  homestead,  or  claim  for  homestead, 
and  whether  or  not  a  declaration  has  been  filed;  and  the  tax  val- 
uation of  the  land  and  improvements. 

IV. 

As  to  occupancy  of  the  land,  whether  vacant  or  improved.  If 
improved,  the  character  of  the  improvements;  whether  occupied 
by  the  owner  or  a  tenant  or  other  claimant,  and  if  by  another 
what  interest  is  claimed  by  such  occupant,  particularly  as  to  any 
adverse  claims. 

V. 

As  to  owners  of  adjoining  lands,  and  if  any  conflicting  in- 
terests. 

If  registration  is  asked  on  title  by  adverse  possession,  find  as  to 
time  of  possession  by  owner  and  each  of  his  predecessors  in  in- 
terest, for  five  years,  and  payment  of  taxes,  having  in  view  the 
provisions  of  Sec.  6,  stating  the  character  of  the  possession,  bring- 
ing it  under  some  one  of  the  definitions  of  possession  required  by 
the  general  statute,  as  set  forth  in  Note  40,  Sec.  6. 

VII. 

Find  as  to  liens,  easements,  and  incumbrances  on  the  property. 
And  in  this  connection  find  as  to  those  named  in  Sec.  34;  any 
subsisting  lease  with  or  without  actual  occupation;  any  dedica- 
tion of  land  for  a  public  highway;  any  right  of  way  or  other  ease- 
ment created  within  a  year  before  issuance  of  certificate;  current 
taxes  and  any  special  assessment  and  what  payments  made;  any 
right  of  action  or  claim  allowed  by  the  act  that  can  be  ascertained; 
and  as  far  as  possible  any  liens,  claims  or  rights  under  the  laws 
of  the  United  States. 

VIII. 

Find  any  other  facts  necessary,  pertaining  to  the  title. 

OPINION. 

From  the  foregoing  findings  of  facts  it  is  my  opinion  that  the 
title  to  the  land  described  in  the  petition  is  substantially  as  alleged, 
and  that  the  applicant,  A.  B.,  is  entitled  to  have  notice  of  the 
filing  of  his  petition  given  as  provided  by  law. 

All  of  which  is  respectfully  submitted  this day  of , 

19.... 

F.  G.  B., 
Examiner  of  Titles. 


60  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.   19- 

29.  (Sec.  19.)     Report  of  examiner  approved*1 
(Title.) 

This  cause  now  coming  on  to  be  heard  on  the  report  of  J.  M.f 
Examiner  of  Titles  to  whom  the  abstract  of  title  was  heretofore 
referred,  and  on  the  exhibits  connected  therewith,  and  the  Court 
having  fully  considered  the  same  (and  the  exceptions  and  objec- 
tions thereto.)*  the  sail  report  is  hereby  approved  and  confirmed, 
and  the  findings  of  facts  therein  are  adopted  as  the  findings  of 
the  Court. 

//  an  order  is  made  at  this  time  that  notice  of  the  filing  of  the 
petition  be  given,  continue  as  from  *  in  entry  No.  n. 

30.  (Sec.    19.)     Report   of   examiner  considered  and  further 

proof  ordered. 

(Title.) 

(As  in  last  entry  *  and  continue)  :  —  the  Court  finds  that 
the  proof  adduced  to  establish  the  fact  that  (State  the  fact  not 
sufficiently  proven)  is  not,  in  the  opinion  of  the  Court,  sufficient 
therefor  ; 

Or,  that  the  opinion  of  the  said  Examiner  as  to  the  validity  of 
the  title  is  not  sufficiently  sustained  by  the  evidence  and  records 
shown  in  the  exhibits. 

It  is  therefore,  on  motion  of  ..............................  ,  ordered  that  the  case 

be  referred  to  said  Examiner  for  further  proof  if  it  can  be  ob- 
tained, in  respect  to  the  matters  above  referred  to,  and  report 
made  to  this  Court. 

Or,  the  order  may  be  that  the  further  proof  be  presented  to 
the  Court. 

Or,  as  in  entry  No.  29  to  *  and  continue:  —  finds  that  certain 
evidence  which  it  considers  important  (Specify)  was  improperly 
rejected  by  the  Examiner.   It  is  therefore  on  motion  of  ........................ 

ordered  that  the  case  be  re-referred  to  said  Examiner  to  hear  such 
evidence,  and  make  report  to  this  court.68 

Sec.  20.  APPLICATION  MAY  BE  WITHDRAWN:  —  Any  applicant 
may,  upon  payment  of  all  fees  due,  withdraw  his  application  at 
any  time  prior  to  the  hearing  thereof,69  and  upon  the  written  re- 


the  death  of  an  Examiner,  the  court  may  approve  the  por- 
tion of  the  report  that  was  before  it,  prior  to  death.  McMahon  vs. 
Rowley,  238  111.  31. 

6»It  is  proper  to  re-refer  a  cause  to  the  examiner  to  hear  evidence 
which  the  court  considers  important,  that  had  been  rejected.  McMahon 
vs.  Rowley,  238  111.  31. 

6»The  right  to  have  a  petition  dismissed  is  one  which  can  be  asked 
for  as  a  matter  of  right  by  the  petitioner,  only  when  it  relates  to  the 
entire  tract  described  in  the  petition.  When  it  relates  to  a  part  only,  it 
may  properly  be  denied  by  the  Court.  Foss  vs.  Atkins,  204  Mass.  337. 

The  application  may  be  dismissed  at  any  time  by  the  applicant, 
over  the  objections  of  any  defendant,  as  to  the  entire  property  involved 
and  as  to  any  part  thereof.  Glos  vs.  Murphy,  225  111.  58. 


-21.]  SUBSTITUTION    OF    PARTIES  61 

quest  [31]  of  such  applicant  and  the  order  of  the  Court  [32]  the 
clerk  shall  return  to  the  applicant  all  abstracts  of  titles,  deeds, 
and  other  instruments,  except  depositions  or  affidavits  deposited 
by  him  for  the  purpose  of  supporting  his  application. 

31.     (Sec.  20.)     Request  for  withdrawal  of  application. 
(Title.) 

The  applicant  in  this  case  asks  the  Court  for  leave  to  withdraw 
his  application  for  registration  filed  herein,  and  requests  the  re- 
turn to  him  of  the  abstract  of  title  and  all  deeds  and  other  in- 
struments filed  in  the  case. 


Applicant. 

32.  (Sec.  20.)     Allowing  application  to   be  withdrawn. 
(Title.) 

Now  comes  the  applicant,  and  his  written  request  for  the  with- 
drawal of  his  application  for  registration  of  title  herein,  being 
considered,  the  Court  grants  such  request,  upon  the  payment  by 
the  applicant  of  all  fees  due  in  the  case  ;  and  on  the  payment  of 
such  fees,  the  clerk  is  hereby  directed  to  return  to  the  applicant 
all  abstracts  of  titles,  deeds  and  other  instruments,  except  any 
depositions  or  affidavits,  filed  or  deposited  by  him  in  the  case. 

Sec.  21.  ON  DEATH  OR  DISABILITY  OF  APPLICANT:  —  In  case  of 
the  death  or  any  disability  of  the  applicant,  the  court,  on  motion, 
may  allow  the  proceeding  to  be  continued  by  or  against  his  repre- 
sentative or  successor  in  interest.  [33.]  (a)  In  case  of  any  other 
transfer  of  interest  the  proceeding  may  be  continued  in  the  name 
of  the  original  applicant,  [34.]  or  the  court  may  allow  the  person 
to  whom  the  transfer  is  made  to  be  substituted  in  the  proceed- 
ing.70 [35.] 

33.  (Sec.  21.)     On  death  or  disability  of  applicant,  represen- 

tative made  party. 
(Title.) 

Now  comes  A.  L.,  by  his  counsel,  J.  B.,  and  suggests  to  the 
Court  the  death  (or,  disability)  of  A.  B.,  the  applicant  herein,  and 
states  that  he  is  the  duly  qualified  administrator  (or  other  repre- 
sentative) of  the  said  A.  P.,  and  moves  the  Court  for  leave  to 
become  a  party  to  this  action,  and  to  continue  the  same.  And  the 
Court  finding  the  suggestion  to  be  true,  grants  such  motion,  and 
said  A.  L.,  administrator,  is  accordingly  made  party  applicant  in 
this  action,  and  the  action  proceeds. 


the  case  of  Foss  vs.  Atkins,  204  Mass.  337,  the  court  refused  to 
allow  a  respondent  to  amend  the  petition  by  substituting  his  name  as 
petitioner  for  the  registration  of  the  title  to  a  part  of  the  land  described 
in  the  original  petition  to  which  he  had  been  found  the  owner.  He 
should  bring  an  independent  action. 


62  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.  21- 

34.  (Sec.  21.)     On  transfer  of  interest,  action  continued  for 

benefit  of  transferee. 

(Title.) 

Now  comes  E.  C.  B.,  by  his  counsel,  and  represents  to  the 
Court  that  since  the  filing  of  the  petition  herein  he  has  purchased 
from  the  applicant,  D.  B.,  the  land  sought  to  be  registered,  and 
moves  the  Court*  that  the  case  be  continued  for  his  benefit  in  the 
name  of  the  original  applicant.  And  the  Court  being  satisfied  of 
the  truth  of  the  allegation  grants  such  motion,  and  the  action 
proceeds. 

35.  (Sec.  21.)     On  transfer  of  interest,  transferee  substituted. 
(Title.) 

As  in  last  to  *  and  continue: — for  leave  to  be  substituted  for 
said  D.  B.,  as  applicant  herein.  And  the  Court,  being  satisfied  of 
the  truth  of  the  allegation,  grants  such  motion  and  the  said  E. 
C.  B.  is  accordingly  substituted  as  the  applicant  herein,  and  the 
action  proceeds. 

REGISTRATION  AND  CERTIFICATE — DELIVERY  OF  DUPLICATE. 

Sec.  22.  Immediately  upon  the  filing  with  the  regis- 
trar of  the  certified  copy  of  the  decree  ordering  regis- 
tration, he  shall  proceed  to  register  the  title  in  accord- 
ance with  the  directions  of  the  decree  and  issue 
a  certificate  or  certificates  of  title  in  the  manner  herein 
directed  ;  (a)  and  the  registrar  shall  also  immediately  make 
an  entry  in  a  book  kept  by  him  for  that  purpose  showing  the  name 
of  the  person  to  whom  the  certificate  was  issued,  its  number,  the 
day,  hour  and  minute  of  its  issuance,  the  name  of  the  person  to 
whom  the  duplicate  certificate  was  delivered  and  the  book  and 
page  where  the  original  certificate  is  entered  or  recorded.  In 
said  book  there  shall  be  provided  a  place  for  the  signature  of  the 
person  to  whom  a  certificate  is  issued  upon  giving  receipt  for 
such  certificate  as  provided  for  by  Sec.  30  of  this  act  and  where 
in  cases  where  such  receipt  is  not  signed  in  the  presence  of  the 
registrar,  the  same  may  be  pasted.  Such  receipts  when  so  signed 
and  witnessed  or  acknowledged  shall  be  prima  facie  evidence  of 
the  genuineness  of  the  owner's  signature. 

The  registration  provided  for  in  the  above  section  will  be  made 
in  the  "register  of  titles,"  Sec.  29;  and  the  registrar  must  in 
addition  to  that  book  keep  another  showing  to  whom  the  dupli- 
cates are  delivered.  This  book  may  have  each  page  printed  as 
follows : 

DUPLICATE   CERTIFICATES   OF  TITLE  DELIVERED. 

No 

Original  Certificate  entered  in  "Register  of  Titles,"  Vol ,  Fol 

Certificate  issued  to  - 


-23.]  CERTIFICATE  OF   TITLE  63 

Date  of  issue :  Year,  19 ;  Month ,  Day ,  Hour. ,  Min 

Duplicate  Certificate  delivered  to T1  Owner. 

RECEIPT." 

RECEIVED,  this day  of ,  19 ,  from  C.  L.  Logan, 

Registrar  of  Titles,  Duplicate  Certificate,  No 

,   Owner. 

By  

Address 

Telephone  No 

Witness72 

Registrar. 

CERTIFICATE  OF  TITLE. 

Sec.  23.  Every  first  and  subsequent  certificate  of  title  shall 
be  in  duplicate  and  numbered  consecutively  and  bear  date  the 
year,  month,  day,  hour,  and  minute  of  its  issue,  and  shall  be  under 
the  hand  and  official  seal  of  the  registrar. 

(a)  One  copy  of  said  certificate  shall  be  retained  by  the  regis- 
trar and  be  known  as  the  original,  [36.]  and  the  other  shall  be 
delivered  to  the  owner,  or  person  acting  for  him,  and  be  known 
as  the  duplicate. 

(b)  The  certificate  shall  state  whether  the  owner,  except  in  the 
case  of  a  corporation,  executor,  administrator,  assignee,  or  other 
trustee,  is  married  or  not  married,  and,  if  married,  the  name  of 
the  husband  or  wife.    If  the  owner  is  a  minor,  it  shall  state  his 
age ;  if  under  any  other  disability,  the  nature  of  the  disability.   If 
issued  to  an  executor  or  administrator,  the  certificate  shall  show 
the  name  of  the  deceased  testator  or  intestate ;  if  to  an  assignee 
in  insolvency  or  trustee  in  bankruptcy  the  name  of  the  insolvent 
or  bankrupt. 

(c)  The  registrar  shall  note  at  the  end  of  the  certificate,  orig- 
inal and  duplicate,  in  such  manner  as  to  show  and  preserve  their 
priorities,  the  particulars  of  all  estates,  mortgages,  liens,  incum- 
brances,  and  charges  to  which  the  owner's  title  is  subject. 

THE  ORIGINAL  CERTIFICATE  OF  TITLE. 

The  entry  made  in  the  "Register  of  Titles,"  a  book  to  be  kept 
by  the  registrar,  as  provided  in  Sec.  29,  constitutes  the  original 

"When  the  duplicate  is  delivered  to  another  for  the  owner,  as  per- 
mitted by  Sec.  23  (a),  write  in  FOR.  But  in  that  case  the  receipt  of 
the  owner,  duly  acknowledged,  must  also  be  furnished,  and  be  pasted 
in  the  book. 

"By  Sec.  30,  a  receipt  must  be  signed  by  the  owner.  If  not  signed 
by  the  owner  in  the  presence  of  the  registrar  or  deputy  it  must  be 
acknowledged  before  an  officer  authorized  to  take  acknowledgements 
and  will  then  be  pasted  in  this  book.  Proper  blanks  for  that  purpose 
should  be  kept  by  the  registrar. 


64  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.  23- 

certificate  in  every  first  and  subsequent  certificate  of  title;  and 
the  number  of  each  with  its  duplicate  will  be  that  of  the  folium 
of  such  "Register  of  Titles"  on  which  it  is  entered.  See  sections 
29  and  48. 

The  following  is  given  as  a  form  for  such  folium,  consisting  of 
two  pages,  which  being  filled,  constitutes  the  original  certificate. 
36.  (Sec.  23). 

CERTIFICATE  OF  TITLE. 

Vol ,  Folium 

State  of  California,  } 

County  of j  ss' 

First  registration  issued pursuant  to  a  decree  01 

the  Superior  Court  in  and  for  said  County,  rendered  on  the 

day  of ,  19. ,  in  registration  proceedings  No 

(This  certificate  transferred  from  previous  certificate  No , 

by  reason  of  transfer  of  the  land  herein  by from 

to  A.  B.,  dated ,  Filed , 

File  No T3) 

THIS  is  TO  CERTIFY  that  D.  B., 

being  of  full,  or,  a  minor  of  the  age  of years,  and  under 

legal   disability,74   

residing  at  No street  in  the of 

Occupation    

Married,   

the  owner in  fee  simple75 


of  the  following  described  lands  in  the  County  of , 

State  of  California,  to-wit: 

(Space  for  description.) 

That  said  property  is community  property  and 

subject  to  homestead  

SUBJECT,  HOWEVER,  to  the  estates,  easements,  liens,  incumbrances, 
and  charges  in  the  memorials  and  hereunder  noted  and  free  from 
all  others  except  any  that  may  be  substituting  as  noted  in  Section 


73See  Sec.  48  (a). 

7<If  under  any  legal  disability,  state  its  nature.     Sec.  23. 

"If  administrator  or  executor  state  fact  and  give  name  of  deceased, 
and  if  given  a  power  of  sale  by  the  will  the  words,  "With  power  of 
sale"  must  be  registered.  Sec.  75.  If  he  be  assignee  in  insolvency  or 
trustee  in  bankruptcy  give  name  of  insolvent  or  bankrupt.  If  acting 
in  any  other  special  capacity,  state  what.  Sees.  23  and  24. 

If  owner  is  tenant  in  common  with  others,  see  Sec.  25  and  find  and 
issue  certificates  accordingly.  In  case  of  trust,  condition,  or  limitation, 
say,  "in  trust,"  "upon  condition,"  or  "with  limitation."  Sec.  67.  If 
power  of  sale  is  conferred  say  "with  power  of  sale."  Sees.  68  and  75. 


-24.]  CERTIFICATE   OF   TITLE  65 

34  of  the  act  for  registration  of  titles,  as  shown  in  the  transcript 
of  said  Sec.  34  hereon.    Also  to  right  of  appeal  as  noted  hereon. 


MEMORIALS. 

[2nd.  Page.] 
Documents  with  priorities  in  the  order  as  here  numbered. 

File       In  whose     Date  of  Filing,  Nature,  Signature  of  Registrar 

No.  favor       Y.M.-D.H.-Min.     Amount,  Terms 

[Leave  spate  for  miscellaneous  memorials  and  notations.] 
In  witness  whereof  I  have  hereunto  set  my  hand  and  caused 

my  official  seal  to  be  affixed,  this day  of ,  19 , 

at o'clock Min M. 

(SEAL)  

Registrar  of  Titles,  in  and  for  the 

County  and  State  above  named. 

Print  on  the  folium  of  the  registrar  and  on  the  duplicate  certifi- 
cate, Sec.  34  and  the  following: 

Right  of  appeal  exists  for  six  months  after  entry  of  decree,  by 
Sec.  939,  Code  of  Civil  Procedure. 

DUPLICATE  CERTIFICATE. 

The  duplicate  must  be  a  copy  of  the  original.  It  is  well  to  have 
space  on  the  duplicate,  when  folded,  for  making  a  plat  of  the 
property. 

Sec.  24.  FORM  OF  CERTIFICATE  : — No  particular  form  of  certifi- 
cate of  title  is  required,  but  the  same  may  be,  subject  to  such 
changes  as  the  case  may  require,  substantially  in  the  following 
form: 

State  of  California,  ) 

County  of ("  Ss' 

A.  B.  (state  occupation  and  residence,  giving  street  and  num- 
ber), State  of  California  (if  an  administrator,  give  the  name  of 
the  deceased ;  if  a  minor,  give  his  age ;  if  under  other  disability, 
state  its  nature),  married  to  (name  of  husband  or  wife,  or  if  not 
married  so  state),  is  the  owner  of  an  estate  in  fee  simple  (or  as 
the  case  may  be)  in  the  following  land  (insert  description  con- 
tained in  the  decree).  Subject,  however,  to  the  estates,  ease- 
ments, liens,  incumbrances,  and  charges  hereunder  noted.  (In 
case  of  trust,  condition,  or  limitation,  say  "in  trust,"  or  "upon 
condition,"  or  "with  limitation,"  as  the  case  may  be.) 

1.  Mortgage  to for  the  sum  of  $ ,  dated  , 

payable  after  date,  with  interest  at  per  cent  per 

?«By  Sec.  56,  in  case  a  tax  sale  is  shown  by  the  last  certificate,  add, 

"subject  also  to  the  tax  sale  of  said  land  made  on  the  day  of 

19. .,  to as  shown  by  the  last  certificate." 


66  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  25- 

,  interest  payable 

2.  Mechanic's  lien  in  favor  of  X.  Y.  for  $ ,  filed 

3.  Assessment  for  improvement  of  street.     Amount 

$ ,  due. 

(Any  other  incumbrances  or  charges.) 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  caused 
my  official  seal  to  be  affixed,  this date  of 


Registrar  of  Titles  in  and  for  the  County 
(SEAL)  of ,  State  of  California. 

Sec.  25.  TENANTS  IN  COMMON: — In  all  cases  where  two  or 
more  persons  are  entitled  as  tenants  in  common  to  an  estate  in 
registered  land,  such  persons  may  receive  one  certificate  for  the 
entirety,  or  each  may  receive  a  separate  certificate  for  his  undi- 
vided share. 

Sec.  26.  CERTIFICATES  EXCHANGED: — Upon  the  application  of 
any  registered  owner  of  land  held  under  separate  certificates  of 
title,  or  under  one  certificate,  and  delivering  up  of  such  certificate 
or  certificates  of  title,  the  registrar  may  issue  to  such  owner  a  single 
certificate  for  the  whole  of  such  land,  or  several  certificates,  each 
containing  a  portion  of  such  land,  in  accordance  with  such  appli- 
cation, and  as  far  as  the  same  may  be  done  consistently  with  any 
regulations  at  the  time  being  in  force,  respecting  the  certificates 
of  land  that  may  be  included  in  one  certificate  of  title ;  and  upon 
issuing  any  such  certificate  of  title  said  registrar  shall  indorse  on 
the  last  previous  certificate  of  title  of  such  lands  so  delivered  up  a 
memorial  [37,  38.]  setting  forth  the  occasion  of  such  cancellation 
and  referring  to  the  volume  and  folium  of  the  new  certificate  or 
certificates  of  title  so  issued.77 

37.     (Sec.  26.)     Memorial  on  cancelled  certificates,  when  one 
issued  for  several. 

This  certificate  is  cancelled  by  reason  of  new  certificate  No 

being  issued  in  place  of  this  one  and  Nos and ,  at  own- 
er's request,  this day  of ,  19 


Registrar. 

38.     (Sec.  26.)    Memorial  when  several  issued  for  one. 

This  certificate  is  cancelled  by  issuance  in  place  of  it,  at  re- 
quest of  owner,  of  new  several  certificates,  Nos and  , 

this day  of ,  19 


Registrar. 


"On  the  back  of  all  cancelled  certificates  write  or  stamp, 
CANCELLED. 


-27.]  CERTIFICATE  OF   TITLE  67 

Sec.  27.  ON  LOSS  OF  DUPLICATE  : — In  the  event  of  a  duplicate  cer- 
tificate of  title  being  lost,  mislaid,  or  destroyed,  the  owner  may 
apply  to  the  court  for  an  order  upon  the  registrar  to  issue  a  cer- 
tified copy  of  the  original  certificate  of  registration  [39.] .  Upon 
the  hearing  of  such  application,  the  court  may  order  such  notice 
to  be  given  to  such  persons  and  for  such  time  as  it  may  deem 
proper.  [41.]  If  the  court  is  satisfied  that  the  applicant  is  the 
person  named  in  the  original  certificate  on  file  in  the  registrar's 
office,  and  that  the  duplicate  certificate  has  been  lost,  mislaid,  or 
destroyed,  the  court  shall  make  an  order  directing  the  registrar 
to  issue  a  certified  copy  of  the  original  certificate  to  the  applicant. 
[40,  42.]  A  certified  copy  of  such  order  shall  be  filed  in  the  reg- 
istrar's office,  who  shall  thereupon  issue  to  such  applicant  a  cer- 
tified copy  of  the  original  certificate,  with  the  memorials  and  no- 
tations appearing  upon  the  register,  and  shall  note  upon  the  reg- 
ister the  fact,  cause  and  date  of  such  issue  and  shall  also  mark 
upon  such  certified  copy :  "Owner's  certified  copy,  issued  in  place 
of  lost  (mislaid,  or  destroyed,  as  the  case  may  be)  certificate," 
and  such  certified  copy  shall  stand  in  the  place  of,  and  have  like 
effect  as,  the  missing  duplicate,  (a)  In  case  of  a  lost  certificate, 
no  transfer  of  the  land  shall  be  made  until  such  certified  copy  is 
issued  by  the  registrar. 

(&)  A  certified  copy  of  the  certificate  of  title  may  be  issued  by 
the  registrar  for  use  as  evidence,  upon  the  receipt  by  him  of  an 
order  therefor  made  by  the  court  [43.]  provided,  that  such  certi- 
fied copy  shall  have  written  or  stamped  across  the  face  thereof 
the  words  "for  use  as  evidence  only."  The  issuance  of  such  cer- 
tified copy  and  the  purpose  thereof  shall  also  be  noted  upon  the 
original  certificate  by  the  registrar. 

39.  (Sec.  27.)     Application  for  certified  copy  of  certificate,  on 

loss  of  duplicate. 
(Title.) 

The  undersigned  hereby  represents  to  the  Court  that  his  Dupli- 
cate Certificate  of  Title,  No ,  has  been  lost  or  mislaid  (or, 

destroyed),  and  prays  the  Court  for  an  order  on  the  Registrar  to 
issue  to  him  a  certified  copy  of  the  original  certificate  in  his  office. 

(Signed)     E.  W. 

40.  (Sec.  27.)      Order  granting  request  for  certified  copy  of 

original  certificate,  without  notice. 

(Title.) 

The  application  of  E.  W.  for  an  order  upon  the  Registrar  for 

a  certified  copy  of  the  original  certificate  of  title  No ,  now 

being  heard,  and  the  Court  not  deeming  it  necessary  that  notice 
of  such  application  should  be  given  to  the  parties  herein,  *  and 
being  satisfied  from  the  evidence  that  the  said  E.  W.  is  the  person 


68  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  27- 

named  in  such  original  certificate  of  title  f  and  that  his  duplicate 
certificate  has  been  lost  or  mislaid  (or,  destroyed)  as  alleged,  his 
application  is  granted.  It  is  therefore  ordered  that  the  Registrar, 
on  the  filing  of  a  certified  copy  of  this  order  in  his  office,  and  on 
the  payment  by  the  applicant  of  the  charges  for  such  copy,  issue 
to  him  a  certified  copy  of  such  original  certificate  with  the  memor- 
ials and  notations  thereon,  as  provided  by  the  act  therefor. 

41.  (Sec.  27.)    Notice  of  application  ordered. 
(Title.) 

The  application  of  E.  W.  for  a  certified  copy  of  certificate  of 

title  No ,  now  being  presented  to  the  Court,  on  consideration 

thereof  the  Court  directs  that  the  hearing  of  said  application  be 

set  down  for  the day  of ,  19. ,  in  this  court 

at  o'clock  M.  and  that  days  notice  of  such  time 

and  place  be  given  to  (Name  who  shall  be  served  with  notice). 

42.  (Sec.  27.)     Order  granting  request  of,  after  hearing. 
(Title.) 

The  application  of  E.  W.  for  an  order  upon  the  Registrar  for 
a  certified  copy  of  the  original  certificate  of  title  No ,  com- 
ing on  for  hearing  this  day  of  ,  19_ ,  the 

Court  finds  that  due  notice  has  been  given  to  all  persons  in  in- 
terest, as  heretofore  directed.  (Conclude  as  from  *  in  entry 
No.AO). 

43.  (Sec.  27.)     Order  for  certified  copy  of  certificate,  to  be  used 

as  evidence. 

(Title.) 

Now  comes by  his  counsel, , 

and  makes  application  to  the  court  for  the  issuance  of  a  certified 

copy  of  certificate  of  title  No ,  to  be  used  only  as  evidence 

in  a  certain  proceeding  in  (Name  court  and  proceeding  where  it 
is  to  be  used)  and  the  Court  on  consideration  grants  the  same. 
It  is  therefore  ordered  that  the  Registrar,  on  receipt  of  this  order 
and  on  payment  of  the  cost  therefor,  issue  such  certified  copy, 
and  write  across  the  face  thereof,  "For  use  as  evidence  only." 

Sec.  28.  CORRECTION  OR  CHANGE  IN  CERTIFICATE: — If  an  own- 
er's name  or  description  is  incorrectly  registered,  or  becomes 
changed  (e.  g.  by  marriage,  adoption,  divorce,  etc.),  the  court, 
upon  the  filing  of  an  application  [44.]  and  proof  of  facts  in  the 
manner  set  forth  in  section  twenty-seven  of  this  act,  and  the  pro- 
duction by  the  owner  of  the  duplicate  certificate,  shall  order  the 
registrar  to  issue  a  new  certificate,  with  such  change  as  the  case 
may  require.  [45.] 

44.  (Sec.  28.)     Application  for  change  of  name  in  certificate. 
(Title.) 

The  undersigned  now  comes  and  represents  to  the  Court  that 


-28.]  CERTIFICATE  OF   TITLE  69 

he  (or,  she)  is  the  owner  of  duplicate  certificate  of  title  No 

and  of  the  land  therein  described,  owned  and  held  under  the 

name  of  „ ,  and  that  his  (or,  her)  name  has 

been  changed  by to since  the 

issuance  of  the  certificate;  and  he  (or,  she)  therefore  makes  ap- 
plication to  the  Court  for  a  new  certificate  of  title  to  be  issued  to 
him  (or,  her)  with  the  change  of  name  therein  as  here  stated. 

(Signed)    E.  W. 

If  notice  of  the  application  be  ordered  to  be  given,  use  form  of 
Entry  No.  41. 

It  would  appear  that  this  application  may  be  heard  and  acted 
on  by  the  Court  without  notice  to  other  parties,  in  its  discretion. 

Section  98  provides  more  fully  for  making  corrections  or  alter- 
ations in  the  certificate,  by  filing  a  petition  on  which  summons 
shall  issue  and  the  case  be  set  for  hearing  and  heard  after  notice 
to  all  parties.  But  that  section  expressly  provides  that  the  changes 
in  name  there  referred  to  are  "other  than  by  marriage  as  pro- 
vided for  in  section  28  of  this  act." 

It  would  appear  therefore  that  either  proceeding,  that  of  sec- 
tion 28  or  of  section  98  is  applicable  to  the  changes  provided  for 
in  section  28,  except  that  of  change  of  name  by  marriage. 

If  the  above  views  are  correct,  use  the  following  entry,  in  case 
notice  is  not  required,  by  the  Court,  of  the  hearing. 

45.  (Sec.   28.)     Order  granting   application  for  cerrection   or 

cliange  of  name,  without  notice. 

(Title.) 

The  application  of  E.  W.  for  correction  (or,  change)  of 

name,  in  certificate  of  title  No in  this  case,  now  coming  up 

for  hearing,  and  the  Court  not  deeming  it  necessary  that  notice 
of  such  application  should  be  given  to  the  parties  herein,  and  be- 
ing satisfied  from  the  evidence  that  the  said  E.  W.  is  the  person* 
incorrectly  named  in  the  certificate  as  L.  W.  and  that  the  correc- 
tion asked  for  should  be  made  (or,  that  the  said  E.  W.  is  the 
person  named  in  the  certificate  as  E.  B.  and  that  such  name  has 

been  changed  by  to  E.  W.  and  should  be  so 

changed  in  the  certificate),  it  is  therefore  ordered  accordingly; 
and  it  is  ordered  that  the  Registrar,  on  receipt  of  a  certified  copy 
of  this  order  with  the  duplicate  certificate  of  title  and  the  costs 
hereof,  issue  a  new  certificate  to  the  said  E.  W.,  with  the  change 
here  ordered. 

46.  (Sec.  28.)     Order  for  correction   (or,  change)    of  name, 

after  hearing. 

(Title.) 

This  case  coming  on  for  hearing  this day  of , 

19.. ,  on  the  application  heretofore  filed  by  E.  W.  for  correc- 
tion (or,  change)  of  name  in  the  certificate  of  title,  the 


70  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  29- 

Court  finds  that  due  notice  has  been  given  to  all  persons  in  in- 
terest, as  heretofore  directed  by  the  Court ;  and  the  Court  being 
satisfied  from  the  evidence  that  the  said  E.  W.  is  the  person 
(Conclude  as  from  *  in  last  entry. 

"REGISTER  OF  TITLES." 

Sec.  29.  The  Registrar  shall  keep  a  book,  to  be  known  as  the 
"Register  of  Titles,"  wherein  he  shall  enter  all  original  certifi- 
cates of  title,  in  the  order  of  their  numbers,  with  appropriate 
blanks  for  the  entry  of  memorials  and  notations  allowed  by  this 
act.  Each  certificate,  with  such  blanks,  shall  constitute  a  separate 
folium  of  such  book.  All  memorials  and  notations  that  may  be 
entered  upon  the  register  under  the  terms  of  this  act  shall  be  en- 
tered upon  the  folium  constituted  by  the  last  certificate  of  title  of 
the  land  to  which  they  relate.  Each  certificate  of  title  shall  be 
numbered  the  same  as  the  folium  of  the  register  on  which  the 
registration  of  the  title  of  which  it  is  a  duplicate,  is  entered. 

The  record  made  in  the  "Register  of  Titles"  constitutes  the 
original  certificate  of  title.  It  must  therefore  be  in  a  form  to  be 
conveniently  duplicated.  As  a  convenient  form  for  the  printed 
part  of  a  folium,  see  No.  36,  ante. 

It  will  be  more  convenient  to  use  two  opposite  pages  of  the 
"Register  of  Titles"  for  a  folium. 

Sec.  30.  RECEIPT  FOR  DUPLICATE  CERTIFICATE  : — Before  the  de- 
livery of  any  duplicate  certificate  of  title,  a  receipt  for  it  shall  be 
required,  to  be  signed  by  the  owner.  Where  such  receipt  is  signed 
in  the  presence  of  the -registrar  or  a  deputy,  it  shall  be  witnessed 
by  such  officer.  If  signed  elsewhere,  it  shall  be  acknowledged  be- 
fore any  officer  authorized  to  take  acknowledgements  of  deeds. 

By  section  22  this  receipt  should  be  printed  or  pasted  in  the 
book  kept  by  the  Registrar  for  the  purpose  of  showing  to  whom 
the  certificates  of  title  are  issued.  See  under  that  section,  -ante. 

Sec.  31.  WHEN  LAND  DEEMED  TO  BE  REGISTERED: — In  every 
case  of  first  registration  of  land  or  an  estate  or  interest  therein, 
the  same  shall  be  deemed  to  be  registered  under  this  act,  when  the 
registrar  shall  have  marked  upon  the  certificate  of  title,  in  dupli- 
cate, the  volume  and  folium  of  the  register  in  which  the  original 
may  be  found. 

Sec.  32.  WHEN  TRANSFER  DEEMED  TO  BE  REGISTERED: — Every 
transfer  of  registered  land  shall  be  deemed  to  be  registered  under 
this  act,  when  the  new  certificate  to  the  transferee  shall  have  been 
marked,  as  in  the  case  of  the  first  registration ;  and  all  other  deal- 
ing shall  be  considered  as  registered  when  the  memorial  or  nota- 
tion shall  have  been  entered  in  the  register  upon  the  folium  con- 
stituted by  the  existing  certificate  of  title  of  the  land.  But,  for 


-34.]  REGISTERED    OWNER  71 

the  protection  of  the  transferee  or  person  claiming  through  any 
transfer  or  dealing,  the  registration  shall  relate  back  to  the  time 
of  filing  in  the  registrar's  office  the  deed,  instrument,  or  notice, 
pursuant  to  which  the  transfer,  memorial  or  notation  is  made. 

Sec.  33.  COMPLAINT  AGAINST  REGISTRAR: — Any  person  feeling 
himself  aggrieved  by  the  action  of  the  registrar,  or  by  his  refusal 
to  act  in  any  manner  pertaining  to  the  first  registration  of  land, 
or  any  subsequent  transfer,  or  charge  upon  the  same,  or  failing 
or  neglecting,  or  refusing  to  file  any  instrument,  or  to  enter  or 
cancel  any  memorial  or  notation,  or  to  do  any  other  thing  re- 
quired of  him  by  this  act,  may  file  a  complaint  in  the  Superior 
court  making  the  registrar  and  other  persons,  whose  interest  may 
be  affected,  parties  defendant,  and  the  court  may  proceed  therein 
as  in  other  cases,  and  make  such  order  or  decree  as  shall  be 
according  to  equity  and  the  purport  of  this  act.  A  certified  copy 
of  such  order  or  decree  shall  be  presented  to  the  registrar,  who 
shall  file  the  same  and  make  such  entry  thereof  as  by  this  act  re- 
quired. 

REGISTERED  OWNER  HOLDS  SUBJECT  TO  WHAT  ESTATES. 

Sec.  34.  The  registered  owner  of  any  estate  or  interest  in  land 
brought  under  this  act  shall,  except  in  case  of  fraud  to  which  he 
is  a  party,  or  of  the  person  through  whom  he  claims  without 
valuable  consideration  paid  in  good  faith,  hold  the  same  subject 
only  to  such  estates,  mortgages,  liens,  charges,  and  interests  as 
may  be  noted  in  the  last  certificate  of  title  in  the  registrar's 
office,  and  free  from  all  others,  except: 

1.  Any  subsisting  lease  or  agreement  for  a  lease  for  a  period 
not  exceeding  one  year,  where  there  is  actual  occupation  of  the 
land  under  lease.  The  term  "lease"  shall  include  a  verbal  letting. 

2.  All  land  embraced  in  the  description  contained  in  the  cer- 
tificate which  has  theretofore  been  legally  dedicated  as  or  declared 
by  a  competent  court  to  be  a  public  highway. 

3.  Any  subsisting  right  of  way  or  other  easement,  created 
within  one  year  before  issue  of  the  certificate  upon,  over,  or  in 
respect  of  the  land. 

4.  Any  tax  or  special  assessment  for  which  a  sale  of  the  land 
has  not  been  had  at  the  date  of  the  certificate  of  title. 

5.  Such  right  of  action  or  claim  as  is  allowed  by  this  act. 

6.  Liens,  claims,  or  rights  arising  under  the  laws  of  the  Unit- 
ed States,  which  the  statutes  of  California  can  not  require  to 
appear  of  record  upon  the  register. 

Section  34  should  be  printed  on  the  certificate  of  title  as  a 
memorandum  to  the  holder,  as  shown  under  No.  36.  But  at  the 
same  time  as  all  of  these  conditions  are  of  interest  to  the  pur- 
chaser, information  should  be  obtained  in  some  way  and  be  given 


72  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  35- 

in  some  form  in  the  certificate.  The  examiner  of  titles  might  in- 
vestigate and  report,  and  the  facts  be  entered  as  memoranda  on 
the  certificate. 

Sec.  35.  ADVERSE  TITLE  NOT  ACQUIRED  BY  POSSESSION  : — After 
land  has  been  registered,  no  title  thereto  adverse  or  in  derogation 
to  the  title  of  the  registered  owner  shall  be  acquired  by  any  length 
of  possession. 

Sec.  36.  TRANSFEREE  NEED  NOT  INQUIRE  INTO  PREVIOUS  REGIS- 
TRATION : — Except  in  case  of  fraud,  and  except  as  herein  other- 
wise provided,  no  person  taking  a  transfer  of  registered  land,  or 
any  estate  or  interest  therein,  or  of  any  charge  upon  the  same,  from 
the  registered  owner,  shall  be  held  to  inquire  into  the  circum- 
stances under  which,  or  the  consideration  for  which,  such  owner 
or  any  previous  registered  owner  was  registered,  or  be  affected 
with  notice,  actual  or  constructive,  of  any  unregistered  trust,  lien, 
claim,  demand,  or  interest;  and  the  knowledge  that  any  unreg- 
istered trust,  lien,  demand,  or  interest  is  in  existence  shall  not  of 
itself  be  imputed  as  fraud. 

Sec.  37.  FRAUD  AND  FORGERY  :78 — In  case  of  fraud,  any  person 
defrauded  shall  have  all  rights  and  remedies  that  he  would  have 
had  if  the  land  were  not  under  the  provisions  of  this  act;  pro- 
vided, that  nothing  contained  in  this  section  shall  affect  the  title 
of  a  registered  owner  who  has  taken  bona  fide  for  a  valuable  con- 
sideration, or  of  any  person  bona  fide  claiming  through  or  under 
him.79 

Sec.  38.  DEED  FORGED,  ETC.  : — If  a  deed  or  other  instrument  is 


"This  section  is  identical  with  Sec.  106. 

"When  the  registration  is  obtained  by  fraud,  and  the  owner  of  the 
land  is  not  notified,  as  required  by  statute,  the  decree  and  the  certifi- 
cate of  registration  issued  thereunder,  may  be  vacated  and  set  aside, 
as  long  as  the  title  remains  registered  in  the  name  of  the  person 
guilty  of  fraud.  Or  unless  an  innocent  purchaser,  for  value,  has  ob- 
tained rights  on  faith  of  the  record.  Baart  vs.  Martin,  99  Minn.  197. 

The  above  holding  was  made  notwithstanding  the  fact  that  the 
Minnesota  act  does  not  in  express  words  except  fraud.  It  being  held 
that  it  was  not  the  purpose  of  the  registration  act  to  sanction  fraud, 
that  was  prohibited  by  the  general  statutes. 

Where  an  owner  obtains  a  decree  registering  his  title  to  land  which 
is  in  all  respects  regular,  but  has  fraudulently  omitted  to  disclose  the 
existence  of  an  unrecorded  mortgage  or  to  make  the  mortgagee  a  party 
to  the  registration  proceedings,  and  then  conveys  the  land  for  a  valua- 
ble consideration  to  a  person  who  relies  on  the  registry  proceedings 
and  has  no  knowledge  of  the  mortgage,  the  purchaser  takes  title  free 
from  the  mortgage.  Henry  vs.  White,  123  Minn.  182. 

The  plaintiff  was  not  estopped  to  seek  the  relief  prayed,  by  a  Tor- 
rens  decree  adjudging  title  in  the  defendant,  she  having  been  know- 
ingly misnamed  in  the  summons  as  bearing  her  former  husband's 
name,  and  having  neither  appeared  in  the  proceedings  nor  been  per- 
sonally served.  Arnold  vs.  Smith,  121  Minn.  117. 


-44.]  DEALINGS  WITH  REGISTERED  LAND  73 

registered,  which  is  forged,  or  executed  by  a  person  under  legal 
disability,  such  registration  shall  be  void ;  provided,  that  the  title 
of  a  registered  owner,  who  has  taken  bona  fide  for  a  valuable 
consideration,  shall  not  be  affected  by  reason  of  his  claiming  title 
through  some  one,  the  registration  of  whose  right  or  interest  was 
void,  as  provided  in  this  section. 

Sec.  39.  TITLE  NOT  AFFECTED  BY  UNREGISTERED  ESTATE: — No 
unregistered  estate,  interest,  power,  right,  claim,  contract,  or  trust 
shall  prevail  against  the  title  or  a  registered  owner  taking  bona 
fide  for  a  valuable  consideration,  or  of  any  person  bona  fide  claim- 
ing through  or  under  him. 

Sec.  40.  CERTIFICATE  CONCLUSIVE  EVIDENCE: — In  any  suit  for 
specific  performance  brought  by  a  registered  owner  of  any  land 
under  the  provisions  of  this  act  against  a  person  who  may  have 
contracted  to  purchase  such  land,  not  having  notice  of  any  fraud 
or  other  circumstances  which,  according  to  the  provisions  of  this 
act,  would  affect  the  right  of  the  vendor,  the  certificate  of  title 
of  such  registered  owner  shall  be  held  in  every  court  to  be  con- 
clusive evidence  that  such  registered  owner  has  a  good  and  valid 
title  to  the  land,  and  for  the  estate  or  interest  therein  mentioned 
or  described. 

Sec.  41.  In  any  action  or  proceeding  brought  for  ejectment, 
partition,  or  possession  of  land,  the  certificate  of  title  of  a  reg- 
istered owner  shall  be  held  in  every  court  to  be  conclusive  evi- 
dence, except  as  herein  otherwise  provided,  that  such  registered 
owner  has  a  good  and  valid  title  to  the  land,  and  for  the  estate 
or  interest  therein  mentioned  or  described,  and  that  such  reg- 
istered owner  is  entitled  to  the  possession  of  said  land. 

Sec.  42.  REGISTER  RECEIVED  AS  EVIDENCE  : — The  register  of  any 
land,  and  duly  certified  copies  thereof,  shall,  except  as  herein 
otherwise  provided,  be  received  in  law  and  in  equity  as  evidence 
of  the  facts  therein  stated,  and  as  conclusive  evidence  that  the 
person  named  therein  as  owner  is  entitled  to  the  land  for  the 
estate  or  interest  therein  specified. 

Sec.  43.  MEMORIAL  CARRIED  FORWARD  : — Whenever  a  memorial 
has  been  entered,  as  permitted  by  this  act,  the  registrar  shall 
carry  the  same  forward  upon  all  certificates  of  title  until  the 
same  is  cancelled  in  some  manner  authorized  by  this  act. 

Sec.  44.  DEALINGS  WITH  LAND  AFTER  REGISTRATION  : — All  deal- 
ings with  land,  or  any  estate  or  interest  therein,  after  the  same  has 
been  brought  under  this  act,  and  all  liens,  incumbrances,  and 
charges  upon  the  same  subsequent  to  the  first  registration  there- 
of, shall  be  deemed  to  be  subject  to  the  terms  of  this  act,  and  to 
such  amendments  and  alterations  as  may  hereafter  be  made.  The 


74  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  45- 

bringing  of  land  under  this  act  shall  imply  an  agreement  which 
shall  run  with  the  land,  that  the  same  shall  be  subject  to  the 
terms  and  provisions  of  this  act  and  of  the  amendments  and 
alterations  thereof. 

Sec.  45.  TIME  LIMITATION  FOR  ADVERSE  ACTIONS  : — No  person 
shall  commence  any  action  at  law  or  in  equity  for  the  recovery 
of  land,  or  assert  any  interest  or  right  in,  or  lien  or  demand  upon 
the  same,  or  make  entry  thereon  adversely  to  the  title  or  interest 
certified  in  the  first  certificate  bringing  the  land  under  the  opera- 
tion of  this  act  after  one  year  following  the  first  registration. 

(a)  It  shall  not  be  an  exception  to  this  rule  that  the  person 
entitled  to  bring  the  action  or  make  the  entry  is  deceased,  an 
infant,  lunatic,  or  is  under  any  disability,  but  action  may  be 
brought  by  such  person  by  his  next  friend  or  guardian  or  by  the 
administrator  or  the  executor  of  a  deceased  person. 

(&)  It  shall  be  the  duty  of  the  guardian,  if  there  is  any,  to 
bring  action  in  the  name  of  his  ward  whenever  it  is  necessary  to 
preserve  or  enforce  the  ward's  rights  in  registered  land ;  provided, 
however,  before  such  action  shall  proceed,  it  must  be  made  to 
appear  to  the  court  that  the  person  bringing  such  action  or  those 
under  whom  he  claims,  had  no  actual  notice  of  the  proceedings 
to  register  such  lands  in  time  to  appear  and  file  his  objections  or 
assert  his  claim. 

(c)  The  provisions  of  this  section  shall  in  no  way  effect  or  dis- 
turb the  rights  of  any  person  in  said  land,  acquired  subsequent 
to  the  registration  thereof,  bona  fide  and  without  knowledge  and 
for  a  valuable  consideration. 

REGISTRATION  IN  PROBATE  PROCEEDINGS 

Sec.  46.  In  all  estates  of  deceased  persons  the  administrator 
or  executor  may  file  a  petition  to  the  court  in  the  probate  pro- 
ceedings, praying  for  the  registration  of  all  land  belonging  to 
the  estate  in  fee  simple,  setting  forth  the  facts  required  to  be 
set  forth  by  sections  5  and  6  of  this  act  together  with  a  descrip- 
tion of  all  the  land  of  which  the  deceased  died  seized  which  is 
sought  to  be  registered.80 

(a)  The  court,  by  reason  of  its  general  jurisdiction  shall,  in 
probate,  have  power  and  jurisdiction  to  do  any  and  all  things 
necessary  to  determine  the  title  to  the  land  and  to  all  adverse 
interests  therein  to  the  same  extent  as  said  court  has  in  independ- 
ent proceedings  under  this  act.  (&)  Upon  the  filing  of  such  peti- 
tion the  court  must  direct  notice  of  the  filing  of  said  petition  to 
issue  as  provided  by  this  act80  and  the  administrator  or  executor 
shall  publish  and  serve  such  notice  upon  all  persons  required  by 
this  act  to  be  served  and  in  the  manner  herein  specified. 

(c)  Every  decree  of  final  or  partial  distribution  of  land  sought 


-47.]  DEALINGS  WITH   REGISTERED  LAND  75 

to  be  registered,  wherein  upon  the  hearing  of  such  petition,  after 
said  notice  has  been  given,  the  court  shall  find  the  title  to  such 
land  to  be  such  as  to  entitle  it  to  be  registered  under  this  act, 
may  direct  all  such  land  to  be  registered  in  the  name  of  the  dis- 
tributee or  distributees  in  fee  simple,80  which  decree  shall  be 
authority  to  the  registrar  of  the  county  in  which  any  such  land 
is  situated  to  register  the  same  and  issue  his  certificate  of  regis- 
tration to  such  distributee  or  distributees,  (d)  If  any  land  sought 
to  be  registered  in  any  proceeding  under  this  act  lies  in  any 
county  other  than  the  county  in  which  said  estate  is  being  admin- 
istered, a  certified  copy  of  said  petition  shall  forthwith  be  filed 
with  the  registrar  of  every  county  in  which  any  of  such  land  may 
be  situated  and  such  copy,  when  filed,  shall  be  notice  of  such 
application  to  all  persons  dealing  with  said  land. 

The  petition  required  by  this  section  will  be  in  form  as  in 
Application  THREE  of  the  general  petition. 

The  order  that  notice  be  given  as  in  entry  No.  11. 

The  notice  as  in  No.  15,  with  proper  modifications.  The  publi- 
cation and  service  of  this  notice  will  be  the  same  as  prescribed 
in  Sec.  12. 

For  the  decree  of  registration,  modify  the  general  decree 
No.  22. 

Sec.  47.  NOTATIONS  ON  INSTRUMENTS  FILED: — Any  instrument 
offered  for  filing  with  the  registrar  of  any  county,  seeking  to 
affect  registered  land,  must  have  noted  thereon  a  statement  of 
the  fact  that  the  land  sought  to  be  affected  is  registered  land, 
with  the  name  of  the  registered  owner  and  with  the  number  or 
numbers  of  the  certificate  or  certificates  of  the  last  registration 
thereof.  [47.]  Otherwise  none  of  such  instruments  shall  be  filed, 
nor  shall  the  same  affect  the  title  of  the  or  any  part  of  the  land 
sought  to  be  affected,  nor  will  the  same  impart  any  notice  thereof 
to  the  registered  owner  or  to  any  person  dealing  with  such  land. 


""See  Sec.  17,  and  remarks  under  it,  on  Registration  in  other  pro- 
ceedings. 


76  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  48- 

47.     (Sec.  47.)     Notations  on  back  of  deed  transferring  regist- 
ered land. 

DEED. 
File  No 


TO 

Residence  and  post  office  address  :81 

Dated 

The  land  transferred  by  this  instrument  is  registered  land. 

Name  of  the  last  registered  owner 

Number  of  the  last  certificate 

Filed 19. ,  at O'C Min M.82 

NEW  CERTIFICATE  No 8S 


Registrar. 

Sec.  48.  TRANSFER  OF  REGISTERED  LAND — NEW  CERTIFICATE  : — 
A  registered  owner  of  land  desiring  to  transfer  his  whole  estate  or 
interest  therein,  or  some  distinct  part  or  parcel  thereof,  or  some 
undivided  interest  therein,  or  to  grant  out  of  his  estate  an  estate 
for  life,  may  execute  to  the  intended  transferee  a  deed  or  in- 
strument of  conveyance  in  any  form  authorized  by  law  for  that 
purpose.84  And  upon  filing  such  deed  or  other  instrument  in  the 
registrar's  office,  and  surrendering  to  the  registrar  the  duplicate 
certificate  of  title,  the  transfer  shall  be  complete  and  the  title  so 
transferred  shall  vest  in  the  transferee;  (a)  thereupon,  the  reg- 
istrar shall  issue  in  duplicate  and  register,  as  hereinbefore  pro- 
vided, a  new  certificate,85  certifying  the  title  to  the  estate  or  in- 

siSee  Sees.  48  and  53  as  to  forms  of  instruments,  and  Sec.  54  re- 
quiring the  full  name,  residence  and  post-office  address  of  the  grantee, 
and  the  notation  of  any  change  of  address. 

82See  Sec.  50. 

ssNotations  on  back  of  a  mortgage  or  other  instrument  will  be  sim- 
ilar. Instead  of  this,  let  the  notation  be,  by  Sec.  60: 

"ENTERED  ON  CERTIFICATE  NO " 

«*See  Sees.  47,  53  and  54  and  notes  under  them  setting  forth  further 
requirements  for  instruments  of  conveyance  of  registered  land.  For 
notations  to  be  made  on  the  instruments  see  No.  47. 

ssThe  opponents  of  the  Torrens  system  have  centered  their  argu- 
ments against  this  provision  for  the  issuance  of  a  certificate  subse- 
quent to  the  first  one,  claiming  that  while  the  first  certificate  has  the 
direct  authority  of  the  court,  the  subsequent  ones  depend  on  the  de- 
cision of  the  registrar,  in  passing  upon  the  character  of  the  instrument 
of  transfer,  upon  which  the  certificate  is  based,  thus  bestowing  on 
him  judicial  powers.  On  this  point  the  Supreme  Court  of  Illinois  in 
the  case  of  People  vs.  Simon,  176  111.  165,  said:  "But  it  is  insisted  that 
the  law  is  still  vulnerable  in  that  it  vests  judicial  power  in  the  regis- 
trar in  the  performance  of  his  duties  as  to  subsequent  registration." 
After  quoting  a  number  of  authorities,  the  court  continued: 


-49.]  DEALINGS  WITH   REGISTERED  LAND  77 

terest  in  the  land  desired  to  be  conveyed  to  be  in  the  transferee, 
and  shall  note  upon  the  original  and  duplicate  certificates  the 
date  of  the  transfer,  the  name  of  the  transferee,  and  the  volume 
and  folium  in  which  the  new  certificate  is  registered,  [48]  and 
shall  stamp  across  the  original  and  surrendered  duplicate  certi- 
ficate the  word  "Canceled,"  in  whole  or  in  part,  as  the  case  may 
be.86 

48.     (Sec.  48.)     Memorial  on  certificate  cancelled  by  transfer 
This  certificate  is  cancelled  by  reason  of  transfer  of  the   (or, 

part  of  the)  land,  by  deed,  File  No ,  dated 19 , 

to New  certificate  entered  in  Reg.  Vol , 

Fol Transferred  this day  of 19- 


Registrar. 

Similar  endorsements  will  be  made  on  transfer  by  Executor, 
Sec.  74;  and  of  a  tax  deed  by  Sec.  81. 

Sec.  49.  TRANSFER  OF  PART: — When  only  a  part  of  the  land 
described  in  a  certificate  is  transferred,  a  new  certificate  shall  be 
issued  to  the  grantee  for  the  part  transferred  to  him  and  another 
one  shall  be  issued  to  the  grantor  for  the  part  remaining  in  him; 
(a)  provided,  however,  that  if  the  land  consists  of  a  tract  divided 
into  subdivisions  designated  by  numbers  or  letters  on  a  plat  of 
said  subdivision,  filed  with  the  recorder,  duly  verified  as  required 
by  law,  on  which  plat  so  filed  the  measurements  of  all  boundaries 

"From  these  authorities  it  is  apparent  that  the  mere  fact  that  the 
registrar  is  required  by  the  act  to  inquire  into  the  existence  of  certain 
facts  and  to  apply  the  law  thereto  in  order  to  determine  what  his 
official  conduct  shall  be,  and  that  his  action  may  affect  private  rights, 
does  not  constitute  the  exercise  of  judicial  powers,  strictly  speaking. 

"Particular  stress,  however,  is  laid  by  counsel  for  appellant  upon 
the  contention  that  the  duties  of  the  registrar  as  to  the  subsequent 
registration  of  land  held  in  trust,  upon  condition,  or  limitation,  are  the 
exercise  of  judicial  powers  in  violation  of  the  terms  of  the  constitu- 
tion. *  *  *  *  These  do  not  differ  materially  from  those  already  exam- 
ined." 

The  objections  were  overruled. 

The  Supreme  court  of  our  own  State  has  set  this  question  at  rest 
so  far  as  California  is  concerned,  by  holding  that  "There  is  no  force 
in  this  objection,"  as  will  be  seen  by  reference  to  the  decision  in  Rob- 
inson vs.  Kerrigan,  page  10  ante. 

As  a  safeguard  against  any  error  on  the  part  of  the  registrar  in 
respect  to  the  character  of  an  instrument,  it  is  provided  by  Sec.  99 
that  any  deed,  mortgage  or  other  voluntary  instrument  presented  for 
registration  may  be  submitted  to  the  court  by  the  registrar,  or  by  any 
party  in  interest,  and  the  court,  after  hearing  if  necessary,  shall  de- 
termine the  form  of  the  memorial  to  be  entered.  All  of  these  pro- 
visions make  It  very  improbable  that  harm  will  ever  be  done  under 
this  provision  in  practical  use. 

««Sec.  55  appears  to  require  also  that  the  word  "Transferred"  be 
stamped  or  written  on  them. 


78  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  49- 

of  each  subdivision  appear,  the  registrar  may,  upon  request  of  the 
grantor,  make  a  new  certificate  to  the  grantee  of  one  or  more  of 
such  subdivisions  and  instead  of  issuing  a  new  certificate  for  the 
remainder  to  the  grantor,  may  enter  upon  the  original  certificate 
and  upon  the  owner's  duplicate,  a  memorandum  of  such  transfer, 
in  red  ink,  setting  forth  the  fact  that  the  particular  subdivision, 
describing  it  by  numbers  or  letters  as  the  same  is  described  in 
said  plat,  has  been  granted  and  that  such  certificate  is  cancelled 
as  to  such  subdivision.  [49.]  Every  certificate  with  such  memor- 
andum endorsed  thereon  shall  be  as  effectual  for  the  purpose  of 
showing  the  grantor's  title  to  the  remainder  of  the  land  not  con- 
veyed as  if  the  certificate  had  been  cancelled  and  a  new  one  for 
the  remainder  issued;  such  process  may  be  repeated  as  long  as 
there  is  convenient  space  upon  the  original  certificate  and  the 
owner's  duplicate  thereof  for  making  such  memoranda  of  trans- 
fers of  subdivisions. 

49.     (Sec.  49.)     Endorsement  on  certificate  of  subdivided  tract, 
•when  lot  sold.61 

Lot  No ,  on  the  plat  of  subdivision  of  the  tract  described 

herein  as  recorded  in  Book ,  Page  ,  in  the  office  of  the 

Recorder  of  this  County,  has  been  transferred  to 

and  a  new  certificate  therefor  entered  in  Vol ,  Folium  , 

and  this  certificate  is,  on  the  owner's  request,  cancelled  as  to  said 
lot  this day  of ,  19 


Registrar. 

Sec.  50.  DATE  OF  FILING  MARKED  ON  INSTRUMENTS: — The  reg- 
istrar shall  mark  as  filed  every  deed,  mortgage,  lease,  and  other 
instrument  which  may  be  filed  in  his  office,  in  the  order  of  its  re- 
ceipt, and  shall  note  thereon  at  the  date  of  filing  the  minute,  hour, 
day,  and  year  it  is  received.88  When  the  date  of  filing  any  instru- 
ment is  required  to  be  entered  upon  the  register,  it  shall  be  the 
same  as  that  indorsed  upon  such  instrument. 

Sec.  51.  INSTRUMENTS  RETAINED  IN  REGISTRAR'S  OFFICE: — All 
instruments,  notices,  and  papers  required  or  permitted  by  this  act 
to  be  filed  in  the  office  of  the  registrar,  shall  be  retained  and  kept 
in  such  office,  and  shall  not  be  taken  therefrom  except  by  a  sub- 
poena duces  tecum  issued  to  and  served  upon  the  registrar  by  a 
court  of  record.  But  the  registrar,  on  demand,  the  proper  fee 
being  tendered  therefor,  shall  deliver  to  any  person  a  copy  or 
copies  of  such  an  instrument,  with  all  memoranda,  memorials, 
and  indodsements  thereon,  duly  certified  under  his  hand  and 
seal  of  office.  The  registrar  shall,  however,  upon  all  such  copies, 


"Must  be  in  red  ink. 

notations  on  instrument,  No.  47. 


-54.]  DEALINGS  WITH   REGISTERED  LAND  79 

indorse  thereon  in  writing  across  the  face  thereof,  in  red  ink, 
"copy,    no   rights    conveyed   hereby." 

Sec.  52.  CERTIFIED  COPIES  : — Every  copy  of  original  instruments 
so  certified  as  provided  for  in  the  last  preceding  section,  shall  be 
received  in  all  cases  in  place  of  the  original,  and  as  evidence  have 
the  same  force  and  effect  as  the  original  instrument. 

Sec.  53.  FORMS  OF  INSTRUMENTS: — Like  forms  of  deeds,  mort- 
gages, leases,  and  other  instruments  as  are  now  or  may  hereafter 
be  sufficient  in  law  for-  the  purpose  intended,  may  be  used  in 
dealing  with  registered  land  and  any  estate  or  interest  therein. 
Such  instrument  shall  give  the  number  of  the  certificate  of  title 
of  the  land  described  therein.89 

(a)  But  an  indorsement  duly  acknowledged,  upon  the  dupli- 
cate certificate  of  title,90  substantially  in  the  following  form,  viz. : 

"I,  ,  grant  to  the  real  property 

described  in  this  certificate.  Witness hand and  seal 

this  day  of ,  ,"  shall  be  sufficient 

to  transfer  the  property  in  said  certificate  described. 

Sec.  54.  NAME,  ETC.,  OF  GRANTEE  :  CHANGE  OF  ADDRESS  : — Every 
deed  or  other  voluntary  instrument  which  is  presented  for  regis- 
tration including  the  endorsement  of  a  certificate  of  title,  shall 
contain  or  have  endorsed  upon  it  the  full  name,  residence  and 
postoffice  address  of  the  grantee  or  other  person  who  acquires  or 
claims  an  interest  under  such  instrument.91 

(a)  Any  change  in  the  residence  or  post  office  address  of  such 
person  shall  be  endorsed  by  the  registrar  upon  the  original  in- 
strument, upon  receiving  a  written  statement  of  such  change,  duly 
acknowledged  [50.]  Notices  and  processes  issued  in  relation  to 
registered  land  after  original  registration,  may  be  served  upon 
any  person  in  interest  by  mailing  them  to  the  address  so  given, 
and  shall  be  binding,  whether  he  resides  within  or  without  the 
state.  The  certificate  of  the  clerk  that  he  has  served  such  notice 
[51.]  shall  be  conclusive  proof  of  such  service;  but  the  court  may, 

s»See  Sec.  47,  requiring  statement  that  the  land  is  registered  land, 
and  the  name  of  the  registered  owner  with  the  number  of  the  certifi- 
cate of  last  registration,  to  be  noted  on  the  Instrument.  Also  Sec.  54 
requiring  the  name,  residence  and  post-office  address  of  the  grantee 
to  be  endorsed  on  the  instrument,  and  any  change  of  address  to  be 
noted. 

»»By  Sec.  54  this  endorsement  shall  contain  or  have  endorsed  upon 
it  the  full  name,  residence  and  post-office  address  of  the  grantee  and 
any  change  must  be  noted,  as  in  the  case  of  other  forms  of  transfer. 

"See  Sec.  47,  requiring  a  statement  that  the  land  is  registered 
land,  the  name  of  the  registered  owner  and  the  number  of  the  certifi- 
cate of  last  registration  to  be  noted  on  the  instrument.  And  form  of 
notation,  No.  47.  See  also  Sees.  48  and  53,  as  to  form  of  instruments 
that  may  be  used. 


80  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  54- 

in  any  case,  order  different  or  further  service,  by  publication  or 
otherwise.  [52.] 

50.  (Sec.  54.)     Notice  of  change  of  address. 

To  the  Registrar  of County,  California : 

You  are  hereby  notified  that  the  address  of  the  undersigned 

has  been  changed  from as  endorsed  on  the  deed 

to  him,  registered  by  certificate  No ,  Vol ,  to 

L.  W. 

Owner. 
M tut  be  duly  acknowledged  before  a  proper  officer. 

51.  (Sec.   54.)     Certificate  of  service  of  notice  and  process. 

(Attach  to  notice  or  process  served.) 

In  the  Superior  Court  of 
the   State   of   California,   in 

and  for  the  County  of 

I  hereby  certify  that  I  received  the  within  notice  on  the 

day  of ,  19- ,  and  served  the  same  on  the 

day  of  ,  19 ,  on  ,  the 

person  therein  named,  by  mailing  a  copy  thereof  to  him,  postage 
prepaid,  to  the  address  endorsed  on  the  last  instrument  of  con- 
veyance to  him  as  grantee,  as  shown  in  Certificate  of  title  No. 

;  to- wit,   (Give  address). 

Given  under  my  hand  and  the  seal  of  said  Court,  this day 

of ,  19. 

H.  J.  L., 
(SEAL)  County  Clerk 

52.  (Sec.  54.)       Order  for  different  or  further  notice. 
(Title.) 

It  appearing  to  the  Court  that  the  notice  given  in  this  case 
(Specify)  is  not  sufficient  to  properly  notify  the  parties  for  whom 
it  was  intended,  (or,  make  any  other  statement).  It  is  now  on 

motion  of  ordered  that  further  notice  be  given 

to  (Specify  as  to  kind  of  service  and  publica- 
tion. ) 

Sec.  55.  INSTRUMENTS  TO  TAKE  EFFECT  AS  CONTRACTS: — A 
deed,  mortgage,  lease  or  other  instrument  purporting  to  convey, 
transfer,  mortgage,  lease,  charge,  or  otherwise  deal  with  registered 
land,  or  any  estate  or  interest  therein,  or  charge  upon  the  same, 
other  than  a  will  or  a  lease  not  exceeding  one  year  where  the  land 
is  in  the  actual  possession  of  the  lessee  or  his  assigns,  shall  take 
effect  only  by  way  of  contract  between  the  parties  thereto,  and 
authority  to  the  registrar  to  register  the  transfer,  mortgage,  lease, 
charge,  or  other  dealing  upon  compliance  with  the  terms  of  this 
act.  On  the  filing  of  such  instrument,  the  land,  estate,  interest, 
or  charge  shall  become  transferred,  mortgaged,  leased,  charged, 


-58.]  DEALINGS  WITH   REGISTERED  LAND  81 

or  dealt  with  according  to  the  purport  and  terms  of  the  deed, 
mortgage,  lease,  or  other  instrument.92 

(a)  The  registrar  shall  immediately,  upon  the  filing  of  such 
instrument,  stamp  or  write  upon  the  original  and  duplicate  certi- 
ficates of  title  the  word  "Transferred,"  "Mortgaged,"  "Leased," 
or  otherwise,  as  the  case  may  require,  with  the  date  of  filing  such 
instrument  and  sign  such  endorsement.98 

Sec.  56.  WHEN  TRANSFER  is  SUBJECT  TO  TAX  SALE: — No  trans- 
fer of  title  to  land  or  any  estate  or  interest  therein  shall  be  regis- 
tered if  the  last  original  certificate  shows  that  the  land  in  such  cer- 
tificate described,  or  any  part  thereof,  has  been  sold  for  any  tax  or 
assessment,  unless  such  transfer  is  intended  to  be  subject  to  such 
tax  sale,  in  which  case  it  shall  be  so  stated  in  the  certificate  issued 
upon  such  transfer94  and  no  transfer  of  any  homestead  which 
has  not  been  heretofore  released  or  extinguished  of  record  shall 
be  made  unless  both  spouses  join  therein. 

Sec.  57.  COMMUNITY  PROPERTY: — Community  property  reg- 
istered under  this  act  as  such  cannot  be  transferred,  mortgaged, 
encumbered  or  otherwise  disposed  of  by  the  registered  owner 
thereof  without  the  written  consent  of  both  spouses. 

Sec.  58.  AFFIDAVIT  OF  TRANSFEREE  : — The  transferee  shall  fur- 
nish the  registrar  with  an  affidavit  [53,  54.]  stating  whether 
the  transferee  (except  when  the  latter  is  a  corporation,  executor, 
administrator,  or  assignee)  is  married  or  not  married,  and  if 
married,  the  name  of  the  husband  or  wife,  and  whether  or  not 
the  property  is  community  property,  and  the  fact  shall  be  record- 
ed on  the  certificate  of  title  by  the  registrar  before  the  transfer  is 
made  on  the  register,  (a)  If  the  transferee  be  an  executor  or 
administrator  [54]  the  certificate  shall  give  the  name  of  the  de- 

szUnder  the  provisions  of  the  Torrens  Act  in  the  State  of  Washing- 
ton, that  no  instrument  shall  take  effect  or  bind  the  land,  operating 
only  as  a  contract  between  the  parties  until  it  is  registered,  Held,  the 
act  of  registration  is  expressly  made  the  operating  act  to  convey  or 
affect  the  land.  The  first  mortgage  registered  takes  precedence  over 
one  of  a  prior  date,  not  registered.  Brace  vs.  Superior  Land  Co.,  65 
Wash.  681. 

9»If  the  Instrument  filed  is  a  deed,  Sec.  48  provides  that  upon  its 
being  filed  a  new  certificate  shall  be  issued  and  the  registrar  shall 
stamp  across  the  surrendered  certificates  the  word  "Cancelled"  in 
whole  or  in  part. 

This  section,  55,  seems  also  to  require  the  word  "transferred"  to  be 
written  or  stamped  on  them.  For  memorial  see  No.  48. 

In  case  the  instrument  is  a  mortgage,  lease  or  other  than  a  deed, 
Sec.  60  provides  that  all  such  shall  be  entered  as  memorials  on  the 
last  certificate.  For  this  form,  see  under  Sec.  23. 

»«For  entry  on  certificate,  see  note  76,  under  Sec.  23. 


82  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  58- 

ceased  testator  or  intestate,  (6)  and  if  the  transferee  be  an 
assignee  or  trustee,  the  name  of  the  insolvent  or  bankrupt. 

53.  (Sec.  58.)     Affidavit  of  transferee. 
State   of   California,  ) 

>    C  C 

County  of \ 

L.  W.,  being  first  duly  sworn,  says  that  he  is  the  transferee  in 
the  foregoing  deed  (or,  in  a  certain  deed  filed  with  the  registrar 

of  said  County,  dated  ,  19 ,  transferring  land 

registered  in  certificate  of  title  No )  ;  that  he  is  married  and 

the  name  of  his  wife  is (or,  that  he  is  not  mar- 
ried) ;  and  the  land  conveyed  by  said  deed  is  (or,  is  not)  com- 
munity property.  L.  W. 

Subscribed  and  sworn  to,  etc. 

54.  (Sec.  58.)     Affidavit  by  Executor,  etc.,  transferee. 

State  of  California,  ) 

County  of } 

L.  W.,  being  first  duly  sworn,  says  that  he  is  the  legally  ap- 
pointed    of and  as  such  

is  the  transferee  in  the  foregoing  deed  (or,  in  a  certain  deed,  etc.) 
and  that  the  land  conveyed  by  such  deed  is  (or,  is  not)  com- 
munity property.  L.  W., 

As of 

Subscribed  and  sworn  to,  etc. 

MORTGAGES,  ETC.,  ON  REGISTERED  LAND. 

Sec.  59.  BECOME  CHARGES  UPON  REGISTRATION  : — Every  mort- 
gage, lease,  contract  to  sell,  or  other  instrument  intended  to  create 
a  lien,  incumbrance,  or  charge  upon  registered  land,  or  any  interest 
therein,  shall  be  a  charge  thereon  immediately  upon  registration 
thereof. 

Sec.  60.  MEMORIAL  OF  PURPORT  OF  INSTRUMENT — NEW  CERTIF- 
ICATE OR  MEMORIAL  BINDING  ON  ALL: — On  the  filing  of  an  instru- 
ment intended  to  create  a  charge  in  the  registrar's  office  and  upon 
the  production  of  the  duplicate  certificate  of  title,  whenever  it  ap- 
pears from  the  original  certificate  of  title  that  the  person  intending 
to  create  the  charge  has  the  title  and  right  to  create  such  charge 
and  the  person  in  whose  favor  the  same  is  sought  to  be  created  is 
entitled  by  the  terms  of  this  act  to  have  the  same  registered,  the 
register  shall  enter  upon  the  original  and  duplicate  certificates  a 
memorial  of  the  purport  thereof,  and  the  date  of  filing  the  in- 
strument,95 with  a  reference  thereto  by  its  file  number,  which 

»5By  Sec.  50  the  date  of  filing  must  be  the  same  as  endorsed  on 
the  instrument. 

See  Sec.  55  and  note  as  to  stamping  certificate. 


-61.]  DEALINGS  WITH  REGISTERED  LAND  83 

memorial  shall  be  signed  by  the  registrar.  The  registrar  shall 
also  note  upon  the  instrument  on  file  the  number  of  the  certifi- 
cate of  title  where  the  memorial  is  entered. 

(a)  No  new  certificate  of  title  shall  be  entered  and  no  mem- 
orandum shall  be  made  upon  any  certificate  of  title  by  the  regis- 
trar in  pursuance  of  any  deed  or  other  voluntary  instrument,  un- 
less the  owner's  duplicate  certificate  of  title  is  presented  with 
such  instrument,  except  in  cases  expressly  provided  for  in  this 
act,  or  upon  the  order  of  the  court,  for  cause  shown,  [56.]  and 
whenever  such  order  is  made,  a  memorial  thereof  shall  be  en- 
tered upon  the  new  certificate  of  title  and  on  the  owner's  dupli- 
cate. The  production  of  the  owner's  duplicate  certificate,  when- 
ever a  voluntary  instrument  is  presented  for  registration,  shall 
be  conclusive  authority  from  the  registered  owner  to  the  registrar 
to  issue  a  new  certificate  or  to  make  a  memorial  in  accordance 
with  such  instrument  and  the  new  certificate  or  the  memorial 
shall  be  binding  upon  the  registered  owner  and  upon  all  persons 
claiming  under  him  in  favor  of  every  purchaser  for  value  in  good 
faith. 

If  the  mortgage  or  other  charge  is  assigned,  enter  on  the  certi- 
ficate, Memorial  No.  57  —  or  57a  under  Sec.  63. 

56.     (Sec.  60.)     Order  allowing  memorandum  to  be  made  with- 
out duplicate  certificate. 
[Title.] 

Now  comes and  represents  to  the  Court  that  he 

desires  to  file  in  this  case  (name  instrument)  but  that  he  has 
not  in  his  possession  the  duplicate  certificate  of  title,  and  the  court 
finding  that  there  is  good  cause  therefor,  and  that  no  harm  will 

be  done  thereby,  it  is  now  on  motion  of  said 

ordered  that  the  said be  filed  and  received  by 

the  registrar  and  entered  on  the  register  of  this  case,  No , 

together  with  a  memorial  of  this  order.    And  the  said 

is  directed  to  produce  his  duplicate  certificate for 

entry  thereon. 

A  similar  order  may  be  made  for  cause  shown  for  a  new  cer- 
tificate. 

Sec.  61.  INSTRUMENTS  FILED  IN  DUPLICATE: — When  any  mort- 
gage, lease,  or  other  instrument  creating  or  dealing  with  a  charge 
upon  registered  land,  or  any  estate  or  interest  therein,  is  in  dupli- 
cate, triplicate,  or  more  parts,  only  one  of  the  parts  need  be  filed 
and  kept  in  the  registrar's  office ;  but  the  registrar  shall  note  upon 
the  register  whether  the  same  is  in  duplicate,  triplicate,  or  as  the 
case  may  be,  and  shall  also  mark  upon  the  others  "mortgagee's 
duplicate,"  "lessor's  duplicate,"  lessee's  duplicate,"  or  as  the  case 


84  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  62- 

may  be,  and  note  upon  the  same  the  date  of  filing  and  the  volume 
and  folium  of  the  register  where  the  memorial  is  entered,  and 
deliver  them  to  the  parties  entitled  thereto. 

Sec.  62.  CERTIFIED  COPIES  OF  INSTRUMENTS: — When  an  instru- 
ment is  not  executed  in  a  sufficient  number  of  parts  for  the  con- 
venience of  the  parties,  the  registrar  may  make  and  deliver  to 
each  of  the  parties  entitled  thereto  certified  copies  of  the  instru- 
ment filed  in  his  office,  with  the  indorsements  thereon,  marking 
the  same  "mortgagee's  certified  copy,"  "lessor's  certified  copy,"  or 
as  the  case  may  be,  and  shall  note  upon  the  register  the  fact  of 
issuing  such  copies.  Such  certified  copies  shall  have  the  same 
force  and  effect  and  be  treated  as  duplicates. 

Sec.  63.  ASSIGNMENT  OF  A  CHARGE: — The  holder  of  any 
upon  registered  land,  desiring  to  transfer  the  same  or  any 
part  thereof,  may  execute  an  assignment  of  the  whole  or  any  part 
thereof.  The  assignment  of  a  part  only  must  state  whether  the 
part  transferred  is  to  be  given  priority,  to  be  deferred,  or  to  rank 
equally,  with  the  remaining  part.  Upon  such  assignment  being 
filed  in  the  office  of  the  registrar,  and  the  production  of  the  dupli- 
cate or  certified  copy  of  the  instrument  creating  the  charge  held 
by  the  assignor,  the  registrar  shall  enter  in  the  register  opposite 
the  charge  a  memorial  of  such  transfer  [57]  and  how  it  ranks, 
with  a  reference  to  the  assignment  by  its  file  number;  [57a]  he 
shall  also  note  upon  the  instrument  on  file  in  his  office  intended 
to  be  transferred,  and  upon  the  duplicate  or  certified  copy  thereof 
produced,  the  valume  and  folium  where  the  memorial  is  entered, 
with  the  date  of  the  entry,  (a)  The  transferee  shall  be  entitled 
to  have  a  certified  copy  of  the  instrument  of  transfer  with  the 
indorsement  thereon,  and  in  case  of  the  transfer  of  the  entire 
charge,  the  duplicate  or  certified  copy  of  the  instrument  creating 
the  charge. 

57.     (Sec.  63.)     Memorial  of  assignment  of  charge. 

By  an  assignment,  File  No ,  dated 

filed  this day  of ,   19 ,  the  mortgage 

from to File  No ,  has 

been  transferred  to (Signed  by  registrar.) 

57a.     (Sec.  63.)     Memorial  of  assignment  of  part  of  charge. 

By  an  assignment,  File  No ,  dated filed 

this day  of ,  19 ,  an  undivided 

interest  in  the  mortgage  from to. 

File  No ,  has  been  transferred  to , 

and  the  part  transferred  is  given  priority  over  (or,  is  deferred  to, 
or,  ranks  equally  with)  the  remaining  interest  in  said  mortgage. 

(Signed  by  registrar.) 

Sec.  64.   RELEASE  OF  A  CHARGE  : — A  release,  discharge,  or  sur- 


-66.]  DEALINGS  WITH  REGISTERED  LAND  85 

render  of  a  charge,  or  any  part  thereof,  or  of  any  part  of  the 
land  charged,  may  be  effected  in  the  same  way  as  above  provided 
in  the  case  of  a  transfer.  Incase  only  a  part  of  the  charge  or  of 
the  land  is  intended  to  be  released,  discharged,  or  surrendered, 
the  entry  shall  be  made  accordingly;  but  when  the  whole  is  re- 
leased, discharged,  or  surrendered  at  the  same  or  several  times, 
the  registrar  shall  stamp  across  the  instrument  on  file,  and  the 
memorial  therof,  and  the  duplicate  or  certified  copy  produced,  the 
word  "canceled." 

57b.     (Sec.  64.)    Memorial  of  release  of  whole  or  part  of  charge. 

By  an  instrument  of  release  dated filed 

this day  of ,  19. ,  File 

No ,    the. from .to 

being  File  No ,  is  released  in  full.     (Or,  is  released  to  the 

amount  of )    (Signed  by  registrar.) 

Sec.  65.  CHARGES  ENFORCED  AS  IN  OTHER  CASES  : — All  charges 
upon  registered  land,  or  any  estate  or  interest  in  the  same,  may  be 
enforced  as  now  or  hereafter  allowed  by  law,  and  all  laws  with 
reference  to  the  foreclosure  and  release  or  satisfaction  of  mort- 
gages shall  apply  to  mortgages  upon  registered  land,  or  any 
estate  or  interest  therein,  except  as  herein  otherwise  provided, 
and  except  that  until  notice  [58]  of  the  pendency  of  any  suit  to 
enforce  or  foreclose  such  charge  is  filed  in  the  registrar's  office, 
and  a  memorial  therof  entered  on  the  register,  the  pendency  of 
such  suit  shall  not  be  notice  to  the  registrar,  or  any  person  deal- 
ing with  the  land. 

58.     (Sec.  65.)     Notice  of  pendency  of  suit  to  foreclose  or  en- 
force charge. 

Notice  is  hereby  given  that  on  the day  of , 

19 ,  a  suit  was  begun  in  the  Superior  court  of  this  county, 

by ~ against ,  case  No ,  to  enforce 

(or,  foreclose)  the ,  File  No ,  entered  as  memorial 

No on  certificate  No in  the  registrar's  office.     And  the 

registrar  and  all  persons  dealing  with  the  property  on  which 
such is  a  charge  shall  take  notice  thereof.  (Signed.) 

Sec.  66.  POWER  OF  ATTORNEY  : — Before  any  person  can  convey, 
charge,  or  otherwise  deal  with  registered  land,  or  any  estate  or 
interest  therein,  as  attorney  in  fact  for  another,  the  deed  or  in- 
strument empowering  him  so  to  act  shall  be  filed  with  the  regis- 
trar, and  a  memorial  thereof  entered  upon  the  original  duplicate 
certificates.  If  the  attorney  shall  so  desire,  the  registrar  shall 
deliver  to  him  a  certified  copy  of  the  power  of  attorney,  with  the 
indorsements  thereon.  Revocation  of  a  power  may  be  registered 
in  like  manner. 


86  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA        [SEC.  67- 

DEEDS  IN  TRUST 

Sec.  67.  How  NOTED  IN  CERTIFICATE: — Whenever  a  deed  or 
other  instrument  is  filed  in  the  registrar's  office  for  the  purpose 
of  effecting  a  transfer  of,  or  charge  upon,  registered  lands,  or 
any  estate  or  interest  therein,  and  it  appears  from  such  instru- 
ment that  the  transfer  or  charge  is  to  be  in  trust,  or  upon  any 
condition  or  limitation  therein  expressed,  the  registrar  shall  note 
in  the  certificate,  and  the  duplicate  thereof,  or  memorial,  the 
words  "in  trust,"  or  "upon  condition,"  or  "with  limitations,"  as 
the  case  may  be,  but  no  entry  need  be  made  of  the  particulars  of 
any  such  trust,  condition,  or  limitation.96 

Sec.  68.  TRUSTEE  WITHOUT  POWER  OF  SALE: — The  trustee  or 
transferee  in  any  such  instrument  named,  if  the  instrument  con- 
tains the  words  "with  power  of  sale,"  shall  have  power  to  deal 
with  the  land  as  the  owner  thereof;  and  a  bona  fide  purchaser, 
mortgagee,  or  leseee  is  not  bound  to  inquire  into  or  determine 
whether  or  not  the  acts  of  such  trustee  are  in  accordance  with 
the  terms  and  conditions  of  the  trust.  When  such  power  is  con- 
ferred, the  registrar  shall  note  upon  the  certificate  and  duplicate 
thereof  the  words  "with  power  of  sale."96 

Sec.  69.  TRUSTEE  WITHOUT  POWER  OF  SALE: — If,  however,  such 
instrument  does  not  contain  the  words  "with  power  of  sale,"  such 
trustee  shall  have  no  power  to  sell  or  otherwise  deal  with  the  land 
without  an  order  of  court  so  to  do,  duly  given  and  made,  a  cer- 
tified copy  of  which  said  order  shall  be  filed  with  the  registrar, 
and  a  memorial  therof  entered  upon  the  certificate  of  title,  which 
shall  be  conclusive  evidence  as  against  all  persons  that  the  author- 
ity of  such  trustee  was  duly  exercised  in  accordance  with  the  true 
intent  and  meaning  of  the  trust,  condition,  or  limitation. 

Sec.  70.  TRUSTEE  UNDER  WILL  : — A  trustee  under  any  will  ad- 
mitted to  probate  unless  such  power  shall  have  been  expressly 
withheld  by  the  terms  of  such  will,  shall  have  power  to  deal  with 
any  registered  land  held  by  him  in  trust  as  fully  in  every  respect 
as  if  such  lands  belonged  to  him  individually. 

DISTRIBUTION,  ETC.,  OF  REGISTERED  LAND  IN  OTHER  PROCEED- 
INGS— 

Sec.  71.  MADE  AS  IN  OTHER  CASES: — The  distribution,  transfer, 
leasing,  mortgaging,  or  other  change  in  the  status  of  the  title  of 
registered  land  that  is  within  the  jurisdiction  of  any  court  by 
reason  of  the  pendency  of  probate,  insolvency,  or  equity  proceed- 
ings, shall  be  made  under  the  same  conditions  and  limitations  as 
now  or  hereafter  provided  by  the  law  of  this  state. 


»«See  note  75,  under  Sec.  23. 


-74.]          IN  PROBATE  AND  OTHER  PROCEEDINGS  87 

Sec.  72.  ORDER  FOR  CERTIFICATE  OR  MEMORIAL  : — The  court  in 
its  order  or  decree  making  such  distribution,  transfer,  leasing, 
mortgaging,  or  other  change  in  the  status  of  the  title  of  registered 
land  shall  direct  the  registrar  to  issue  a  certificate  of  title,  or  to 
note  a  memorial  of  the  transaction,  as  the  case  may  require,  in 
accordance  with  such  order  or  decree.  [59.] 

The  decrees  called  for  by  sections  69,  71,  72  and  74  are  under 
the  general  laws  of  the  state  and  therefore  forms  are  not  given 
here,  but  only  the  addenda  to  the  decrees. 

59.     (Sec.  72.)     Order  in  decree  for  transfer,  etc.,  that  certi- 
ficate issue,  or  memorial  be  made. 

Add  to  such  decree,  or  to  decree  of  confirmation; — And  it  is 
ordered  that  upon  a  certified  copy  of  this  decree,  and  the  deed 
(or  other  instrument)  made  thereunder,  being  filed  with  the  reg- 
istrar, he  shall  issue  a  new  certificate  of  title  to 

(or,  note  a  memorial  on  the  certificate  of  title)   in  accordance 
with  this  decree. 

Sec.  73.  CERTIFIED  COPY  OF  DECREE,  ETC.,  FILED  WITH  REGIS- 
TRAR:— The  executor,  administrator,  assignee,  receiver,  or  other 
person  acting  under  the  direction  of  said  court,  shall  file  with  the 
registrar  a  certified  copy  of  such  order  or  decree,  also  the  deed, 
lease,  mortgage,  or  other  instrument  executed  in  accordance  with 
such  order  or  decree,  and  also  a  certified  copy  of  the  order  or  de- 
cree confirming  such  sale,  lease,  mortgage,  or  other  transaction, 
when  such  confirmation  is  required  by  law. 

Sec.  74.  SALES  BY  EXECUTORS,  ETC.,  CONFIRMED: — Executors, 
administrators,  trustees  in  bankruptcy,  and  assignees  in  insolvency 
shall  have  no  power  of  sale  of  lands  registered  in  their  names  as 
such,  without  an  order  of  court  obtained  for  that  purpose,  (a) 
Before  any  certificate  can  be  issued  to  the  purchaser,  such  sales 
shall  be  reported  for  confirmation  to  the  court  under  whose 
authority  such  executor,  administrator,  or  assigne  is  acting,  and 
if  confirmed  a  duly  certified  copy  of  the  order  of  confirmation 
shall  be  filed  in  the  office  of  the  registrar,  and  a  memorial  thereof 
entered  upon  the  certificate  of  title.  Upon  the  filing  of  the  certi- 
fied copy  of  such  order  of  confirmation  and  the  entry  of  such 
memorial,  the  registrar  shall  issue  a  certificate  to  the  purchaser  at 
such  sale  [60.]  which  certificate,  in  addition  to  the  usual  contents 
thereof,  shall  refer  to  the  said  order  of  confirmation.  Such  order 
of  confirmation  shall  be  conclusive  evidence  that  the  sale  was 
in  all  respects  conducted  in  accordance  with  law,  and  the  pur- 
chaser shall  not  be  bound  to  inquire  into  the  regularity  of  the 
proceeding,  or  power  to  make  such  sale. 


88  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  74- 

60.  (Sec.  74.)     Order  for  certificate  when  sale  made  by  execu- 

tor is  confirmed. 

Add  to  the  decree  of  confirmation  as  follows; — And  it  is  ord- 
ered that  upon  a  certified  copy  of  this  decree  and  the  deed  made 
thereunder  being  filed  with  the  registrar  he  make  a  memorial 
thereof  upon  the  certificate  of  title  and  issue  a  new  certificate 

to the  purchaser  of  the  land,  in  accordance  with, 

and  which  certificate  shall  refer  to,  this  decree  of  confirmation. 

Sec.  75.  WHEN  EXECUTOR  GIVEN  POWER  OF  SALE  BY  WILL: — If  a 
testator,  by  his  will,  has  provided  that  the  executor  thereof  shall 
have  a  power  of  sale  of  real  estate,  the  court  shall  direct  the 
registrar  to  register  the  words  "with  power  of  sale,"  in  respect 
of  the  land  of  the  deceased,  [61]  and  such  executor  shall  have 
power  to  sell  such  land  without  an  order  of  court  so  to  do,  but 
such  sales  must  be  confirmed  by  the  court  in  the  manner  now  or 
hereafter  provided  by  the  law  of  this  state,  and  a  duly  certified 
copy  of  the  order  of  such  confirmation  shall  be  filed  with  the 
registrar  before  any  certificate  of  title  can  be  issued  to  the  pur- 
chaser of  such  land.  [62.] 

61.  (Sec.  75.)     Order  that  words    "with    power    of  sale"  be 

registered. 
[Title.] 

It  appearing  to  the  court,  from  inspection  of  the  will  of  F.  C.f 
that  said  testator  has  therein  provided  that  the  executor  E.  S. 
shall  have  a  power  of  sale  of  the  real  estate  therein  devised,  and 

registered  in  certificate  of  title  No ,  it  is  hereby  directed 

that  the  registrar  enter  upon  the  register  and  duplicate  certificate 
the  words  "with  power  of  sale"  in  respect  to  the  land  of  the  de- 
ceased. 

62.  (Sec.  75).    Order  in  decree  confirming  sale  made  by  execu- 

tor for  certificate. 
Use  form  of  Entry  No.  59. 

Sec.  76.  CERTIFICATE  OF  MEMORIAL  CONCLUSIVE  EVIDENCE: — 
Thereupon  the  registrar  shall  issue  the  certificate  of  title,  or  note 
the  memorial,  as  the  case  may  require ;  and  such  certificate  of  title 
or  memorial  noted  shall  be  conclusive  evidence  in  favor  of  all 
persons  thereafter  depending  thereon. 

TAX  SALE  OF  REGISTERED  LAND — 

Sec.  77.  NOTICE  BY  PURCHASER: — A  purchaser  of  registered 
land  sold  for  any  tax  or  assessment97  shall,  within  five  days  after 

»TThe  general  statutes  of  California  governing  tax  sales  are  set  forth 
under  Sec.  8  ante,  and  they  govern  both  registered  and  unregistered 
land.  By  reference  to  these  statutes  it  will  be  apparent  that  the  pur- 
chaser referred  to  in  the  first  part  of  this  section  must  be  one  who 
purchases  from  the  State  after  the  five  years  allowed  for  redemption 


-77.]  TAX  SALES  OF  REGISTERED  LAND  89 

such  purchase,  file  in  the  office  of  the  registrar  a  written  notice 
of  such  purchase,  [63]  And  thereupon  the  registrar  shall  enter 
a  memorial  thereof  upon  the  certificate  of  title,  and  shall  mail  to 
each  person  named  in  the  certificate,  and  in  the  memorials  there- 
on, a  copy  of  said  notice,  a  sufficient  number  of  said  copies  to  be 
furnished  to  the  registrar  by  said  purchaser  at  the  time  of  filing 
said  notice,  (a)  In  case  the  state  or  a  municipal  corporation  be- 
comes the  purchaser  of  land  sold  for  any  tax  or  assessment,  the 
tax  collector  or  other  officer  attending  to  such  purchase  shall, 
within  five  days  thereafter,  file  with  the  registrar  a  notice  to  that 
effect.  [64]  And  thereupon  the  registrar  shall  enter  a  me- 
morial thereof  upon  the  register,  and  shall  mail  notices  to  inter- 
ested parties,  as  in  the  case  of  an  individual  purchaser.  Unless 
such  notice  is  filed  as  herein  provided,  the  land  shall  be  forever 
released  from  the  effect  of  such  sale,  and  no  deed  shall  be  issued 
in  pursuance  thereof. 


has  expired  and  the  title  has  become  absolute  In  the  State.  Still,  not- 
withstanding this,  he  must  give  notice,  and  go  through  all  the  formali- 
ties required  by  this  and  subsequent  sections,  before  he  can  acquire 
a  title  to  the  land.  All  of  this  is  certainly  not  for  the  benefit  of  the 
"tax  shark"  as  claimed  by  some  opponents  of  the  law. 

The  case  of  the  State,  in  the  second  part  of  the  above  section  must 
refer  to  its  being  declared  the  purchaser  at  the  tax  sale  as  provided 
in  sections  3767  and  3771  P.  C.  The  provision  here  made  is  also  for 
the  protection  of  the  original  owner. 

The  steps  required  for  purchaser  to  obtain  a  certificate  of  title  to 
registered  land  sold  for  nonpayment  of  taxes  are  as  follows: 
By  Sec.  77: 

1.  Within  five  days  a  written  notice  filed  in  the  office  of  the  reg- 
istrar. 

2.  Memorial  thereof  entered  on  the  certificate  of  title. 

3.  Registrar  must  mail  a  copy  of  the  notice  to  each  person  named 
in  the  certificate  and  in  the  memorials. 

4.  The  tax  deed  issued  to  purchaser. 
Sec.  78: 

5.  The  tax  deed  presented  to  the  registrar. 

6.  Memorial  thereof  made  by  registrar. 

7.  Application  for  a  decree  filed  by  holder  of  deed  with  the  clerk. 
Sec.  79: 

8.  Order  of  Court  that  notice  of  application  be  given. 

9.  The  notice,  sent  to  all  persons  appearing  on  the  register  to  be 
interested  in  the  lands  and  to  the  person  who  paid  the  last  tax  or 
assessment. 

Sec.  80: 

10.  Application  set  for  hearing  and  heard  by  the  Court  wherein 
the  applicant  must  show  affirmatively  that  all  the  requirements  of  the 
statute  have  been  complied  with. 

11.  Decree  of  the  Court,  showing  him  to  be  the  owner,  and  order- 
ing a  certificate  to  be  issued. 

12.  The  certificate  of  title  issued  to  purchaser. 


90  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  77- 

63.  (Sec.  77.)     Notice  of  purchase  of  registered  land  sold  for 

taxes. 

In  the  matter  of  registered  land 
sold  for  non-payment  of 
taxes. 

To  all  whom  it  may  concern : — 

Notice  is  hereby  given  that  the  undersigned  did  on  the 

day  of. ,  19. ,  purchase  from  the  State  of  California 

the  land  hereinafter  described,  registered  in  certificate  of  title 

No and  sold  by  the  state  for  non-payment  of  taxes;  and 

that  the  undersigned  has  applied  (or,  will  apply),  to  the  Superior 
court  of  said  county  for  a  decree  snowing  the  title  of  said  land 
to  be  vested  in  him.  Which  said  land  is  described  as  follows : 
(describe.) 

Dated  this day  of ,  19 

L.  E.  W. 

64.  (Sec.  77.)       Notice  that  registered  land  has  been  sold  to 

state. 

To  all  whom  it  may  concern : 

Notice  is  hereby  given  that  on  the day  of 

19 ,  the  following  registered  land  was  declared  sold  to  the  State 

of  California,  for  delinquent  taxes,  to-wit:  Land  registered 
in  certificate  of  title  No ,  described  as  follows :  (describe.) 

Given  this day  of 19 


Collector  of  Taxes. 

Sec.  78.  TAX  DEED  FILED — APPLICATION  FOR  DECREE: — A  tax 
deed  of  registered  land,  or  of  any  estate  or  interest  therein,  issued 
in  pursuance  of  any  sale  for  a  tax  or  assessment  made  after  the 
taking  effect  of  this  act,  may  be  presented  by  the  holder  thereof 
to  the  registrar,  who  shall  thereupon  enter  upon  the  register  a 
memorial  of  such  deed ;  but  such  deed,  unless  the  same  shall  have 
been  issued  to  the  state,  shall  have  only  the  effect  of  an  agree- 
ment for  the  transfer  of  the  title,  and  before  any  certificate  of 
title  shall  be  issued  for  the  land  described  in  such  deed,  the 
holder  thereof  must  file  with  the  clerk  of  the  Superior  court  an 
application  for  a  decree  showing  the  title  to  said  land  to  be  vested 
in  him.  [65.] 

Shall  the  application  for  the  decree  provided  for  in  the  above 
section  be  filed  in  the  original  case  for  registration,  or  under  a 
new  number  and  proceeding?  The  latter  would  appear  to  be 
the  best  practice,  as  it  might  be  filed  long  after  the  original 


-79.]  TAX  SALES  OF  REGISTERED  LAND  91 

case  had  been  closed,  and  as  this  application  is  treated,  and 
notice  of  it  served  and  decree  entered  in  the  same  manner,  as 
in  case  of  the  original  petition  for  registration.  In  this  view 
make  the  application  as  follows : 

65.     (Sec.  78.)     Application  by  tax  purchaser  for  decree. 

In  the  Superior  court     of 
California,    in    and    for 

the  county   of 

T.  P. 
vs. 


(Name  all  persons  ap- 
pearing on  the  register  to 
be  interested  in  the  land, 


Application    for    decree. 


and  the  person  who  last 
paid  taxes.)  > 

The  applicant,  T.  P.,  now  comes  and  represents  to  the  court 
that  at  a  sale  of  land  for  delinquent  taxes,  held  in  said  county 

of. on  the day  of ,  19 ,  the 

land  hereinafter  described  was  duly  declared  sold,  and  was  sold 
to  the  State  of  California;  that  the  person  who  appears  by  the 
tax  collector's  books  to  have  paid  the  tax  last  paid  before  said 

sale  is  H.  W. ;  that  afterwards,  on  the day  of , 

19 ,  the  applicant  herein  purchased  said  land  from  the  State  of 

California  and  received  a  deed,  duly  executed  therefor. 

He  further  states  that  within  five  days  after  the  said  purchase 
he  duly  filed  a  notice  thereof  in  the  office  of  the  registrar  of  said 
county,  and  that  the  registrar  entered  a  memorial  thereof  on 
the  certificate  of  title  in  his  office  and  sent  a  copy  of  said  notice 
to  each  of  the  defendants,  being  the  persons  named  in  said  cer- 
tificate of  title  and  the  memorials  thereon,  as  required  by  law, 
and  to  said  H.  W. 

Applicant  states  that  all  the  proceedings  in  such  tax  sale  and 
in  the  sale  to  him  have  been  regular  and  according  to  law,  and 
that  thereby  the  title  to  said  land  became  vested  in  him  in  fee 
simple. 

The  said  land  is  registered  in  certificate  of  title  No 

and  is  described  as  follows:     (Describe.) 

Wherefore  the  applicant  prays  the  court  for  a  decree  showing 
the  title  of  said  land  to  be  vested  in  him,  and  directing  the  regis- 
trar to  issue  to  him  a  certificate  of  title  therefor ;  and  for  such 
other  relief  as  shall  be  according  to  law  and  equity. 

( Usual  verification. ) 

Sec.  79.  To  WHOM  NOTICE  SENT  : — All  persons  appearing  upon 
the  register  to  be  interested  in  said  land,  and  also  the  person  who 
appears  by  the  tax  collector's  books  to  have  paid  the  tax  or 
assessment  last  paid  before  the  sale  on  which  the  deed  is  issued, 


92  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  79- 

shall  be  notified;  [67]  and  any  person  claiming  an  interest  in  the 
land  may,  upon  the  hearing  of  such  application,  show,  as  cause 
why  a  certificate  of  title  should  not  issue  to  the  holder  of  said 
deed,  any  fact  that  might  be  shown  in  law  or  in  equity  on  his 
behalf  to  set  aside  such  tax  deed,  and  the  applicant  shall  be  re- 
quired to  show  affirmatively  that  all  the  requirements  of  the 
statute  to  entitle  him  to  a  deed  have  been  complied  with. 

This  notice  must,  by  section  82,  be  served  in  the  manner  pro- 
vided for  service  of  notice  of  application  for  original  registra- 
tion. But  it  would  not  seem  that  an  order  of  court  for  the  notice 
as  required  by  Sec.  11  is  needed  in  this  case,  except  that  the 
court  designate  the  newspaper  in  which  publication  is  to  be  made ; 
but  a  form  for  the  order  is  here  given,  to  be  used  if  deemed 
necessary. 

66.  Order  that  notice  be  given  of  tax  purchaser's  application 

for  decree. 
[Title.] 

T.  P.  having  filed  with  the  clerk  of  this  court  an  application 
for  a  decree  showing  the  title  of  certain  registered  land  sold 
by  the  State  for  non-payment  of  taxes  and  purchased  by  him  as 
described  in  his  deed,  to  be  vested  in  him,  and  the  court  finding 
that  said  tax  deed  has  been  filed  with  the  registrar,  as  required  by 
law;  it  is  now  ordered  that  notice  be  given  of  the  filing  of  the 
application  herein  as  provided  in  the  act  for  registration  of  land 
titles.  The  notice  attached  hereto  is  approved,  and  it  is  ordered 

that  it  be  published  in  the ,  a  newspaper  of  general 

circulation  published  in  this  county,  once  a  week  for  four  succes- 
sive weeks,  and  service  made  as  provided  by  the  act  aforesaid. 

67.  (Sec.  79.)     Notice  of  application  for  decree. 

In   the   Superior   court  of 
California,     in     and    for 

the   county  of. 

[Title  as  in  No.  65.] 

The   State  of   California  to  the  above  named  defendants  and 

to  all  whom  it  may  concern: 

You  are  hereby  notified  that  the  applicant  above  named  did 

on  the day  of 19 ,  file  in  the  office  of  the 

county  clerk  of  said  county  an  application  for  a  decree  of  the 
court,  showing  the  title  of  certain  land  purchased  by  him  at  tax 

sale,  registered  in  certificate  No to  be  vested  in  him.  Which 

said  land  is  described  as  follows:     (describe.) 

You  are  hereby  directed  to  appear  and  answer  such  applica- 
tion within  ten  days  after  personal  service  of  this  notice  upon 
you,  if  served  within  this  county,  or  thirty  days  after  personal 
service  out  of  the  county  and  within  this  state,  or  within  sixty 
days  after  the  first  publication  of  this  notice,  if  it  has  not  been 


-81.]  TAX  SALES  OF  REGISTERED  LAND  93 

personally  served  upon  you  in  this  state.  And  if  you  fail  to 
appear  and  show  cause  why  such  application  should  not  be 
granted,  the  court  will  grant  the  same. 

Witness:    the  Hon.  L.  R.  W.,  Judge. 

Given  under  my  hand  and  seal  of  said  court,  this- 

day  of 19- 

[SEAL.] 

H.  J.  L. 
County  Clerk. 

First  publication 19 

Sec.  80.  DECREE  AND  CERTIFICATE  ON  HEARING: — Such  applica- 
tion shall  be  heard  by  the  court,  which  shall  render  a  decree  [68] 
showing  the  condition  of  the  title  to  such  land,  and  who  is  the 
owner  thereof,  and  upon  presentation  to  him,  of  a  duly  certified 
copy  of  such  decree,  the  registrar  shall  issue  a  certificate  for  said 
land  in  accordance  with  the  terms  and  conditions  of  said  decree. 

68.     (Sec.  80.)     Decree  showing  title  vested  in  holder  of  tax 

deed. 
[Title,  as  in  No.  65.] 

After  due  notice  to  all  parties  in  interest  of  the  hearing  of 

this  case,  it  came  on  to  be  heard  this day  of 19 , 

upon  the  application  of  T.  P.  for  a  decree  showing  the  title  of 
the  land  in  the  application  described,  to  be  vested  in  him  by 
tax  deed,  and  upon  the  exhibits  and  testimony;  and  upon  full 
consideration  thereof  the  court  finds :  (make  finding  of  service 
and  pleadings,  as  in  decree  No.  22,  ante.) 

2.  The  court  coming  now  to  determine  the  title  to  the  land 
finds  that  the  allegations  of  the  applicant,  T.  P.,  are  true ;  that 
all  of  the  proceedings  in  the  sale  of  the  land  as  described  were 
regular  and  in  strict  accordance  with  the  statutes  in  such  case 
provided,  and  with  the  orders  of  this  court;  that  all  acts  re- 
quired by  law  to  be  done  in  such  cases  by  the  registraar  were 
properly  performed  and  that  the  tax  deed  to  the  said  T.  P.  was 
properly  made  and  executed,  and  that  all  other  acts  in  regard 
thereto  have  been  properly  performed. 

It  is  therefore  found  and  adjudged  and  decreed  that  the  said 
T.  P.  is  the  owner  in  fee  simple  of  said  land,  and  his  title  thereto 
is  hereby  established  and  confirmed.  Said  land  is  described  as 
follows:  (describe.) 

It  is  further  ordered  that  the  registrar  issue  to  him  a  certi- 
ficate of  title  as  provided  by  law. 

(Make  any  other  findings  required,  as  in  Decree  No.  22.) 

Sec.  81.  WHEN  STATE  OR  MUNICIPALITY  is  PURCHASER: — In 
case  a  tax  deed  of  registered  land  is  issued  to  the  state  or  any  mu- 
nicipal corporation,  in  pursuance  of  any  sale  for  a  tax  assessment 
made  after  the  taking  effect  of  this  act,  the  registrar  shall,  upon 


94  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  82- 

the  filing  of  such  deed  in  his  office,  cancel  the  certificate  for 
the  land  in  said  deed  described98  and  issue  a  new  certificate  to 
the  purchaser. 

« 

Sec.  82.  How  NOTICE  REQUIRED  IN  SEC.  79  SERVED: — The  notice 
required  by  Section  79  shall  be  served  upon  persons  interested 
in  the  manner  provided  in  this  act  for  the  service  of  notice  of 
application  for  original  registrations.  Proof  of  such  service  and 
publication  must  be  made  in  the  manner  now  or  hereafter  re- 
quired by  the  laws  of  this  State.98a 

Sec.  83.  Redemption  from  tax  sale: — Upon  presentation  to 
him  of  a  certificate  of  redemption  from  any  tax  sale,  the  regis- 
trar shall  cancel  the  memorial  of  said  sale  upon  the  certificate 
of  title. 

PARTITION  OF  REGISTERED  LAND — (See  also  Sec.  104.) 

Sec.  84.  PROOF  AS  TO  PARTIES: — In  proceedings  for  partition  of 
registered  land,  proof  must  be  made  that  all  persons,  shown 
by  the  register  of  title  to  be  interested  in  the  land,  have  been 
made  parties  to  such  proceedings. 

Sec.  85.  LANDS  ALLOTTED  BY  COMMISSIONERS: — On  confirmation 
of  the  report  of  the  commissioners  setting  off  registered  lands 
in  proceedings  for  partition,  it  shall  be  the  duty  of  the  parties  to 
whom  the  lands  are  allotted,  to  cause  a  certified  copy  of  the 
judgment  or  decree  to  be  filed  with  the  registrar.99  Thereupon 
the  registrar  shall  transfer  the  same  upon  the  register,  and  issue 
certificate  of  title  to  the  persons  entitled  thereto,  as  shown  by 
said  decree. 

Sec.  86.  LAND  SOLD  IN  PARTITION  PROCEEDINGS  : — Whenever,  in 
proceedings  for  partition  of  registered  land,  the  court  shall  order 
a  sale  of  such  land  and  the  same  is  sold  under  such  order,  the 
purchaser  shall  file  with  the  registrar  a  certified  copy  of  the 
order  confirming  said  sale,99  together  with  certificate  of  the  officer 
making  the  sale  [69]  that  the  terms  of  the  sale  have  been  com- 
plied with.  Thereupon,  the  registrar  shall  transfer  said  land 
upon  the  register,  and  issue  a  certificate  of  title  to  the  purchaser 
therefor. 


»8For  memorial  to  be  entered  on  cancelled  certificate  see  Form 
No.  48. 

Sec.  12  and  notes  under  that  section. 


order  for  the  registrar  to  issue  a  new  certificate  should  be 
added  to  the  decree  of  confirmation  as  an  assurance  to  the  registrar. 
and  because  a  certificate  under  the  direct  order  of  the  court  carries 
more  weight  with  some  persons.  Entry  No.  59  or  60  may  be  modified 
to  suit  each  case. 


-90.]  PARTITION  OF  REGISTERED  LAND  95 

69.     (Sec.  86.)     Certificate  of  officer  making  sale. 
[Title.] 

I, do  hereby  certify  that  on  the 

day  of 19_....,   I  made  a  sale,  as  ordered  by  the 

court,  in  the  above  named  proceedings  in  partition,  of  the  land 

registered  in  certificate  of  title  No ;  and  that  the  terms 

of  sale  were  in  all  respects  complied  with  and  all  the  proceedings 
of  sale  regular  and  according  to  law. 

Given  under  my  hand  this day  of 19 


Sec.  87.  LIEN  ON  UNDIVIDED  INTEREST,  ATTACHES  TO  WHAT: — 
When  a  tenant  in  common  has  given  any  mortgage,  or  granted 
any  other  lien  or  interest  upon  his  undivided  interest,  and  the 
same  is  set  off  in  severalty  in  proceedings  in  partition,  such 
mortgage,  lien,  or  other  interest  shall  attach  only  to  the  lands  so 
set  off,  and  the  registrar  shall  note  the  same  upon  a  new  register 
of  title,  and  a  new  certificate  of  title,  and  shall  indorse  a  memo- 
randum of  the  partition  upon  the  instrument  creating  such  lien, 
mortgage,  or  other  interest,  if  the  same  be  on  file  in  his  office, 
before  a  new  certificate  of  title  shall  be  issued  therefor. 

Sec.  88.  SALE  OF  REGISTERED  LAND  TO  SATISFY  JUDGMENT: — 
Whenever  registered  land  shall  be  sold  to  satisfy  any  judgment, 
decree,  or  order  of  court,  the  purchaser  shall  file  with  the  reg- 
istrar a  duly  certified  copy  of  the  order  of  sale,  or  of  the  order 
confirming  such  sale,  when  the  same  needs  to  be  confirmed  by 
the  court,  and  also  the  certificate,  if  any,  of  the  officer,  that  the 
terms  of  sale  have  been  complied  with,  and  thereupon  the  regis- 
trar shall  transfer  the  land  to  him,  and  issue  a  new  certificate  of 
title  therefor  to  said  purchaser.100 

Sec.  89.  Lis  PENDENS: — No  suit,  bill,  or  proceeding  at  law  or 
in  equity  for  any  purpose  whatever,  affecting  registered  land,  or 
any  estate,  or  interest  therein,  or  any  charge  upon  the  same, 
shall  be  deemed  to  be  lis  pendens  or  notice  to  any  person  dealing 
with  the  same  until  notice  of  the  pendency  of  such  suit,  bill,  or 
proceeding101  shall  be  filed  with  the  registrar  and  a  memorial 
thereof  entered  by  him  upon  the  register  of  the  last  certificate 
of  the  title  to  be  affected ;  provided,  however,  this  section  shall 
not  apply  to  attachment  proceedings  when  the  officer  making 
the  levy  shall  file  his  certificate  as  hereinafter  provided. 

Sec.  90.  WHEN  SUIT,  ETC.,  DISMISSED,  OR  DISPOSED  OF  : — When 
any  suit,  bill,  or  proceeding  affecting  registered  lands  has  been 

iooSee  note  under  Sees.  85  and  86. 
loiMake  notice  in  form  of  No.  58. 


96  TORRENS  LAND  TITLE  LAW  OF  CALIFORNIA  [SEC.  91- 

dismissed  or  otherwise  disposed  of,  or  any  judgment,  decree,  or 
order  has  been  satisfied,  released,  reversed,  or  modified,  or  any 
levy  of  execution,  attachment,  or  other  process  has  been  released, 
discharged,  or  otherwise  disposed  of,  it  shall  be  the  duty  of 
the  sheriff,  or  the  clerk  of  the  court  in  which  such  proceedings 
were  pending,  or  had,  as  the  case  may  be,  forthwith,  under  his 
hand,  and,  if  the  clerk,  under  the  seal  of  the  court102  to  certify 
to  and  file  with  the  registrar,  an  instrument  showing  such  dis- 
charge or  release.  Upon  the  same  being  filed,  the  registrar  shall 
enter  a  memorial  of  such  discharge  on  the  register.  The  costs 
of  such  certificate  and  memorial  shall  be  taxed  as  other  costs 
in  the  case. 

LIENS  ON  REGISTERED  LAND— 

Sec.  91.  WHEN  JUDGMENT  BECOMES  A  LIEN  : — No  judgment,  or 
decree,  or  order  of  any  court  shall  be  a  lien  on  or  in  any  wise 
affect  registered  land,  or  any  estate  or  interest  therein,  until  a 
certified  copy  of  such  judgment,  decree,  or  order,  under  the  hand 
and  official  seal  of  the  clerk  of  the  court  in  which  the  same  is  of 
record,  is  filed  in  the  office  of  the  registrar,  and  a  memorial  of 
the  same  is  entered  upon  the  register  of  the  last  certificate  of  the 
title  to  be  affected. 

Sec.  92.  LEVY  ON  REGISTERED  LAND  :  CERTIFIED  TO  REGISTRAR  : — 
Whenever  registered  land  is  levied  upon  by  virtue  of  any  writ 
of  attachment,  execution,  or  other  process,  it  shall  be  the  duty  of 
the  officer  making  such  levy  forthwith  to  file  with  the  registrar 
a  certificate  of  the  fact  of  such  levy,  ]  70]  a  memorial  of  which 
shall  be  entered  upon  the  register;  and  no  lien  shall  arise  by 
reason  of  such  levy  until  the  filing  of  such  certificate  and  the 
entry  in  the  register  of  such  memorial,  any  notice  thereof,  actual 
or  constructive,  to  the  contrary  notwithstanding. 

70.     (Sec.  92.)      Certificate  of  levy. 
Sheriff's  Office, 

County  of 

State  of  California. 
To  the  Registrar  of County : 

I  hereby  certify  that  the  land  registered  in  certificate  No 

(or,  describe  the  land)  was  on  the day  of 

levied  on  by  virtue  of  a  writ  of issued  in  case  No 

in  (name  court.) 

Given  under  my  hand,  etc. 


Sheriff  of -County. 

Sec.  96,  practically  the  same  as  this  section,  and  forms  under 
that  section. 


-94.]  LIENS  ON  REGISTERED  LAND  97 

Sec.  93.  MECHANIC'S  LIEN  : — Notice  of  liens  under  the  provi- 
sions of  the  mechanic's  lien  laws  of  this  state  shall  be  filed  in  the 
registrar's  office,  and  a  memorial  thereof  entered  by  him  upon 
the  register,  as  in  the  case  of  other  charges,  and  such  liens  may 
be  enforced  as  now  or  hereafter  allowed  by  law.  Until  such 
notice  is  so  filed  and  registered,  no  lien  shall  be  deemed  to  have 
been  created. 

Sec.  94.  ORDINANCE  FOR  PUBLIC  IMPROVEMENT: — When  in  a 
city,  town,  or  county,  an  ordinance,  resolution,  or  order  is  passed 
or  made,  to  lay  out,  establish,  alter,  widen,  grade,  regrade,  relo- 
cate, or  construct  or  repair  a  street,  sidewalk,  drain,  or  sewer,  or  to 
make  any  other  public  improvement,  or  to  do  any  work,  the  whole 
or  a  portion  of  the  expense  for  which  assessments  may  be  made 
upon  real  estate,  if  any  registered  land  or  any  land  included  in 
an  application  for  registration  then  pending  is  affected  by  the  act 
or  proceeding  and  liable  to  such  assessment,  the  clerk  of  the 
board  passing  such  ordinance,  resolution,  or  order  must,  within 
five  days  after  the  passage  of  such  ordinance,  resolution,  or  order, 
file  in  the  registrar's  office  a  notice  of  the  passage  thereof,  [71] 
and  a  memorial  must  thereupon  be  noted  on  the  register,  (a) 
In  case  of  the  repeal  of  such  ordinance,  [72]  resolution,  or  order, 
the  clerk  of  said  board,  and  in  case  of  the  satisfaction  of  any 
lien  [73]  thereunder,  the  superintendent  of  streets  or  other  of- 
ficer required  by  law  to  collect  and  receive  such  assessments, 
must  within  five  days  thereafter,  notify  the  registrar,  in  writing, 
who  shall  thereupon  cancel  such  memorial. 

71.     (Sec.  94.)     Notice  of  ordinance   to  lay   out  or  improve 

street,  etc. 
To  the  registrar  of county : 

Notice  is  hereby  given  that  on  the. day  of , 

19 ,  an  ordinance  No ,  was  passed  by  the  council  of  the 

of ,  to  establish  (or,  otherwise  affect} 

street,  for  the  expense  of  which  an  assessment 

may  be  made  on  registered  land  included  in  certificate  of  title 
No (Or.  describe  the  land.} 

Given  this day  of ,  19 


Clerk  of , 

72.     (Sec.  94.)     Notice  of  repeal  of  ordinance. 
To  the  Registrar  of County : 

Notice  is  hereby  given  that  Ordinance  No for  the 

of. street  affecting  land  registered  in  certificate 

No (or,  describe  land}  passed  on  the day  of , 

19. ,  was  repealed  on  the day  of ,  19 

Given  this day  of ,  19 


Clerk  of.. 


98  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.  94- 

73.     (Sec.  94.)     Notice  that  lien  under  ordinance  is  satisfied. 
To  the  Registrar  of. County : 

Notice  is  hereby  given  that  the  lien  on  land  registered  in  cer- 
tificate of  title  No ,  for  the  improvement  of. street 

in  the  city  of was  satisfied  on  the day  of , 

19....... 

Given  this day  of ,  19 


Collector. 

Sec.  95.  WHEN  LIEN  DEEMED  TO  AFFECT  TITLE  OF  REGISTERED 
LAND: — No  statutory  or  other  lien  shall  be  deemed  to  affect  the 
title  to  registered  land  until  after  a  memorial  thereof  is  entered 
upon  the  register,  as  herein  provided. 

Sec.  96.  CERTIFICATE  OF  DISMISSAL  OF  SUIT,  ETC.,  TO  BE  FILED: — 
The  filing  in  the  registrar's  office  of  a  certificate  of  the  clerk  [74] 
of  the  court  in  which  any  suit,  bill,  or  proceeding  shall  have  been 
pending,  or  any  judgment  or  decree  is  of  record,  that  such  suit, 
bill  or  proceeding  has  been  dismissed  or  otherwise  disposed  of, 
or  the  judgment,  decree,  or  order  has  been  satisfied,  released, 
reversed,  or  overruled,  or  of  any  sheriff  ]75[  or  other  officer 
that  the  levy  of  any  execution,  attachment,  or  other  process  cer- 
tified by  him  has  been  released,  discharged,  or  otherwise  dis- 
posed of,  shall  be  sufficient  to  authorize  the  registrar  to  cancel 
or  otherwise  treat  the  memorial  of  such  suit,  bill,  proceeding, 
judgment,  decree,  or  levy,  according  to  the  purport  of  such  cer- 
tificate. 

74.  (Sec.  96.)     Certificate  of  clerk  of  suit  dismissed  or  judg- 

ment satisfied. 
Clerk's  office. 

County  of 

State  of  California. 

To  the  registrar  of county : 

I  hereby  certify  that  suit  (or,  that  judgment  in  suit)  No 

in  the  Superior  court  of county,  California,  affecting 

land  registered  in  certificate  of  title  No (or,  describe   the 

land,)   was  dismissed   (or,  satisfied)   on  the day 

of ,  19. 

Given  under  my  hand  and  the  seal  of  the  court  this -day 

of™ ,  19....... 

[  SEAL.  ] _ 

Clerk. 

75.  (Sec.  96.)     Certificate  of  sheriff  of  release  of  levy,  etc. 

Sheriff's  Office, 

County  of 

State  of  California. 


-98.]  ALTERATION  OF   CERTIFICATE  OR   MEMORIAL  99 

To  the  registrar  of county. 

I  hereby  certify  that  the  levy  of  execution  under  judgment  in 

case  No of  the  Superior  court  of  this  county,  heretofore 

certified  by  me,  affecting  land  registered  in  certificate  of  title 

No ,  (or,  describe  the  land,)  was  released  on  the 

day  of ,  19 

Given  under  my  hand  this day  of ,  19. 

Sheriff. 

ALTERATIONS,  ETC.,  OF  CERTIFICATE  OR  MEMORANDUM. 

Sec.  97.  After  a  title  has  been  registered  and  a  certificate 
issued  therefor,  or  after  a  memorandum,  notation,  or  memorial 
has  been  made  on  the  register  of  title  and  has  been  attested,  no 
correction,  alteration,  or  erasure  shall  be  made  therein  or  thereof, 
except  in  the  manner  herein  provided. 

Sec.  98.  APPLICATION  FOR  ORDER  CORRECTING,  ETC.  : — A  regis- 
tered owner  or  other  person  in  interest  or  the  registrar,  may  at 
any  time  apply  by  petition  [76]  to  the  court,  upon  the  ground  that 
registered  interests  of  any  description,  whether  vested,  contin- 
gent, expectant  or  inchoate,  have  terminated  and  ceased;  (a)  or 
that  new  interests  have  arisen  or  been  created  which  do  not  ap- 
pear upon  the  certificates;  (b)  or  that  there  is  an  error  or  omis- 
sion in  any  certificate  or  memorial;  (c)  or  that  any  certificate 
or  memorial  has  been  made,  entered,  indorsed,  issued,  or  can- 
celed by  mistake;  (d)  or  that  the  name  of  any  person  on  the  cer- 
tificate has  been  changed  by  divorce,  adoption,  or  other  than  by 
marriage  as  provided  for  in  section  28  of  this  act;  (e)  or  that  an 
owner,  registers  as  married,  has  ceased  to  be  such ;  '  x  or  that 
a  corporation  which  owned  registered  land  has  been  dissolved 
and  has  not  legally  conveyed  the  same  after  its  dissolution ;  (g) 
or  upon  any  other  reasonable  ground;,  (h)  for  an  order  cor- 
recting or  altering  any  certificate  to  comply  with  the  true  facts 
as  shown  by  the  petition  and  proof  adduced  and  the  court  shall 
have  jurisdiction  to  hear  and  determine  the  petition  after  notice 
to  all  parties  in  interest,  (t)  The  court  shall  issue  an  order  [77] 
summoning  all  persons  registered  as  interested  in  the  lands  to 
which  such  certificate  or  memorial  relates,  to  appear  at  an  ap- 
pointed time  and  place  and  produce  their  duplicate  certificates 
and  show  cause  why  such  omission,  or  mistake,  or  change,  or 
alteration,  should  not  be  corrected  or  made.  (/)  The  registrar 
shall,  upon  receiving  notice  of  such  petition,  enter  a  memorial 
of  such  application  upon  the  certificate  of  title  affected,  (fc) 
If  at  the  time  and  place  appointed  all  such  persons  appear  and 
consent,  the  court  may  order  the  entry  of  a  new  certificate,  the 
the  entry  or  cancellation  of  a  memorandum  upon  a  certificate,  or 


100  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.  98- 

grant  any  other  relief  upon  such  terms,  requiring  security  if 
necessary,  as  it  may  consider  proper.  [79]  If  such  persons,  or 
any  of  them,  fail  to  appear  or  do  not  consent,  the  court  may 
proceed  to  hear  testimony  and  if  it  appears  to  the  satisfaction  of 
the  court  that  the  relief  as  petitioned  for  should  be  granted,  it 
shall  order  and  direct  the  registrar  to  make  such  corrections  or 
modifications  on  such  certificates  or  memorials  as  may  be  neces- 
sary. [80]  (m)  A  certified  copy  of  such  order  of  the  court 
shall  be  filed  in  the  registrar's  office  before  any  such  corrections 
or  modifications  shall  be  entered  or  made,  (n)  When  such 
action  has  been  caused  by  the  fault  or  neglect  of  the  registrar, 
the  costs  of  such  proceedings  shall  be  paid  by  the  county  out  of 
the  fees  collected  by  the  registrar  under  the  provisions  of  this 
act  that  go  into  the  county  treasury ;  if  by  the  fault  of  the  person 
registered  as  interested  in  such  land,  by  such  person,  (o)  The 
provisions  of  this  section  shall  not  give  the  court  authority  to 
open  the  original  decree  of  registration  and  nothing  shall  be  done 
or  ordered  by  the  court  which  shall  impair  the  title  or  other 
interest  of  a  purchaser  who  holds  a  certificate  for  value  and  in 
good  faith,  or  his  heirs  or  assigns  without  his  or  their  written 
consent. 

Sec.  28  provides  for  change  of  name  in  a  certificate,  on  appli- 
cation. More  formality  is  required  in  making  corrections,  altera- 
tions and  erasures  under  this  section.  The  petition  here  provided 
for,  it  would  appear,  may  be  filed  in  the  original  proceedings  for 
registration,  or  as  a  separate  action. 

76.  (Sec.  98.)     Petition,  by  registered  owner,  for  correction  or 

alteration  of  certificate. 
[Title.] 

The  pettioner,  A.  B.,  now  comes  and  represents  to  the  court 
that  he  is  the  owner  of  certificate  of  title  No to  land  de- 
scribed as  follows:  (describe}  ;  and  states  that  (here  set  forth 
any  of  the  conditions  provided  for  in  this  section,  and  the  true 
facts.) 

The  petitioner  therefore  prays  the  court  for  an  order  correct- 
ing (or,  altering)  his  said  certificate  in  the  particulars  here  set 
forth  to  make  it  comply  with  the  facts  as  above  stated,  and  for 
such  other  relief,  etc. 

(Usual  verification.) 

77.  (Sec.  98.)     Order  that  summons  issue. 
[Title.] 

On  consideration  of  the  petition  herein,  it  is  ordered  that  all 
persons  named  as  defendants  in  the  petition,  registered  as  inter- 
ested in  the  lands  in  said  petition  described,  be  summoned  to  ap- 
pear (name  time  and  place,)  and  produce  their  duplicate  certifi- 


-98.]  ALTERATION  OF  CERTIFICATE  OR   MEMORIAL  101 

cates  and  show  cause  why  the  correction  (or,  alteration)  peti- 
tioned for  should  not  be  made. 

78.  Form  of  summons. 

In  the  Superior    court    of    the 
State  of  California,  in  and  for 

the    County   of 

[Title.] 
You,  and  each  of  you,  are  hereby  directed  to  appear  at  (name 

place),  on  the day  of ,  19 ,  at 

o'clock M.,  and  answer  the  petition  of  A.  B.,  filed  herein  for 

the  correction   (or,  alteration)   of  his  certificate  of  title  No , 

relating  to  the  following  described  land  to-wit:  (describe). 
And  you  are  directed  to  there  produce  your  duplicate  certificates 
and  show  cause  why  the  correction  (or,  alteration)  asked  for 
should  not  be  made. 

Given  under  my  hand  and  the  seal  of  said  court,  this 

day  of ,  19 

H.  J.  L., 
Clerk. 

79.  (Sec.  98.)     Order  for  correction,  by  consent. 
[Title.] 

Now  came  A.  B.,  by  his  attorney,  this day  of , 

19 ,  and  thereupon  this  cause  came  on  to  be  heard  on  his  peti- 
tion for  correction  (or,  alteration),  of  his  certificate  of  title 
and  the  proof  adduced  in  support  thereof.  And  upon  considera- 
tion of  the  premises  the  court  finds  that  all  the  persons  regis- 
tered in  this  case  as  interested  in  the  lands  to  which  such  certi- 
ficate relates,  have  appeared  in  person,  or  by  answer  filed  herein, 
and  have  consented  to  the  correction  (or,  alteration),  prayed 
for;  and  the  court  finding  that  the  petition  is  made  upon  reas- 
onable grounds,  it  is  therefore  ordered*  that  correction  (or,  alter- 
ation) of  said  certificate  No be  made  as  follows:  (state 

form)  ;  and  the  registrar  is  ordered  and  directed  to  issue  a  new 
certificate  (or,  make  a  memorandum  on  the  certificate)  in 
accordance  with  this  order  upon  a  certified  copy  hereof  being 
filed  with  him  and  on  payment  of  the  costs  hereof. 

80.  (Sec.  98.)     Order  for  cerrection  on  hearing. 
[Title.] 

Now  came  A.  B.,  the  petitioner  herein,  by  his  counsel,  J.  M., 

this day  of ,  19 ,  and  thereupon  this  case 

came  on  to  be  heard  on  his  petition  for  cerrection  (or,  altera- 
tion) of  his  certificate  of  title  and  the  proofs  adduced  in  sup- 
port thereof,  and  on  the  answer  filed  herein  of  E.  F.  objecting 
to  such  correction,  and  upon  the  testimony  offered ;  and  there- 
upon the  court  finds  that  all  of  the  persons  registered  as  inter- 
ested in  the  lands  to  which  the  certificate  relates,  have  been 
duly  served  with  summons  as  heretofore  ordered  by  the  court, 


102  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.  99- 

and  that  all  of  said  persons  are  in  default  for  failing  to  appear 
or  answer,  except  as  shown  in  the  pleadings  here  named ;  and 
as  to  all  so  in  default  it  is  adjudged  that  the  allegations  of  the 
petition  be  taken  as  confessed  and  true. 

And  upon  full  consideration  of  the  premises  the  court  finds 
that  the  petition  is  made  upon  reasonable  grounds  and  that  the 
relief  petitioned  for  should  be  granted.  It  is  therefore  ordered 
(Conclude  as  from  *  in  last  entry.) 

Sec.  99.  FORM  OF  MEMORIAL  REFERRED  TO  COURT: — When  the 
registrar  is  in  doubt  or  when  the  parties  in  interest  fail  to  agree 
as  to  the  proper  memorial  to  be  made  in  respect  to  any  deed, 
mortgage  or  other  voluntary  instrument  presented  for  registra- 
tion, the  question  shall  be  referred  to  the  court  for  decision, 
either  on  the  certificate  of  the  registrar,  [81]  stating  the  ques- 
tion, or  upon  the  suggestion  in  writing  of  any  party  or  parties 
in  interest;  [82]  and  the  court  after  due  notice  to  all  parties  in 
interest  and  a  hearing,  if  necessary  or  proper,  shall  enter  an 
order  prescribing  the  form  of  the  memorial  to  be  made  by  the 
registrar,  who  shall  make  the  memorial  accordingly.  [83.] 

81.     (Sec.  99.)     Form  of  memorial  referred  to  court  on  regis- 
trars certificate. 
[Title.] 

A  certain ,  which   is  herewith   submitted  to  the 

court,  having  been  presented  to  me  for  registration,  and  being 
in  doubt  as  to  the  proper  memorial  to  be  made  in  respect  there- 
to, the  question  is  hereby  referred  to  the  court  for  decision,  and 
I  certify  the  question  to  be  as  follows :  (state  fully.) 


Registrar. 

82.  (Sec.  99.)     Same,  on  suggestion  of  party. 
[Title.] 

N.  R.  now  conies  and  represents  to  the  court  that  he  is  one 
of  the  parties  in  interest  in  this  case,  and  states  that  the  parties 
herein  can  not  agree  as  to  the  form  of  the  proper  memorial  to 
be  made  by  the  registrar  in  respect  to  a  certain  deed  (or,  other 
instrument)  presented  for  registration,  and  herewith  shown  to 
the  court,  and  suggests  that  the  question  be  referred  to  the 
court  for  decision.  The  question  agreed  upon  by  the  parties  to 
be  submitted  is  as  follows:  (State  fully.) 

(Signed  by  the  parties.) 

83.  (Sec.  99.)     Order  prescribing  form  of  memorial. 
[Title.] 

It  appearing  that  the  registrar  is  in  doubt  (or,  that  the  parties 
herein  fail  to  agree)  as  to  the  proper  memorial  to  be  made  in 
respect  to  (any  voluntary  instrument)  presented  for  registra- 


-100.]  FEES  103 

tion  in  this  case,  and  the  question  having  been  referred  to  the 
court  on  the  certificate  of  the  registrar  (or,  upon  the  suggestion 
in  writing  of  N.  R.  and  agreement  of  the  parties  in  interest) 
the  court  after  due  notice  to  all  interested  parties  and  full  con- 
sideration, hereby  prescribes  the  following  form  of  the  memorial 
to  be  made,  which  the  registrar  is  directed  to  make  accordingly, 
to- wit:  (Set  forth  form  for  tnemorial  or  prescribe  new  certifi- 
cate.} 

Sec.  100.  FEES  UNDER  THIS  ACT: — For  services  performed 
under  the  provisions  of  this  act,  there  shall  be  paid  to  the  regis- 
trar the  following  fees : 

Subdivision  1.  For  filing  decree  directing  land  to  be  brought 
under  the  operation  of  this  act,  including  original  registration 
and  issuing  original  certificate  of  title  and  duplicate  and  the  fil- 
ing of  all  instruments  connected  therewith,  for  each  separate 
parcel  of  land  affected,  one  dollar,  (a)  For  each  subsequent 
registration  and  issuing  of  certificate  of  title,  including  one  dup- 
licate and  the  filing  of  all  instruments  connected  therewith,  for 
each  separate  parcel  of  land  affected,  one  dollar,  (b)  For 
filing  certified  copy  of  any  petition  filed  in  the  Superior  court 
of  another  county  in  probate  proceedings  or  any  notice  of  any 
action  in  another  county  wherein  registration  of  land  is  asked 
for,  one  dollar,  (c)  For  the  entry  of  each  memorial  on  the 
register,  including  the  filing  of  all  instruments  and  papers  con- 
nected therewith  and  the  endorsement  upon  the  duplicate  cer- 
tificate, for  each  separate  parcel  of  land  affected,  fifty  cents, 
(rf)  For  filing  copy  of  will  with  letters  testamentary  or  filing 
copy  of  letters  of  administration  with  or  without  will  annexed 
and  entering  memorial  thereof,  one  dollar,  (e)  For  the  can- 
cellation of  each  memorial  or  charge,  appearing  on  one  certifi- 
cate, twenty-five  cents.  (/)  For  each  certificate  showing  the 
condition  of  the  title  to  all  land  appearing  on  one  certificate, 
three  dollars,  (g)  For  filing  any  instrument  or  furnishing 
a  certified  copy  of  any  instrument  or  writing  on  file  not  herein 
specially  provided  for,  the  same  fees  which  are  allowed  by  law 
to  recorders  for  like  services. 

Subdivision  2.  In  addition  to  the  fees  provided  in  subdivision 
1,  for  services  performed  by  the  registrar  there  shall  be  paid  to 
him  the  following  fees:  Upon  the  original  registration  of  any 
land,  a  sum  equivalent  to  one-tenth  of  one  per  cent  of  the  as- 
sessed value  of  the  land  including  permanent  improvements 
thereon  as  the  same  were  valued  for  county  taxation  the  last 
time  said  land  and  permanent  improvements  or  either  thereof 
were  assessed  for  county  taxes  next  preceding  the  filing  of  the 
petition. 

Subdivision  3.  All  the  fees  collected  by  the  registrar  under 
the  provisions  of  subdivision  1  of  this  section  shall  be  accounted 


104  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.   101- 

for,  paid,  disbursed  and  disposed  of  by  him  in  the  manner  that 
fees  collected  by  him  as  county  recorder  are  now  or  may  here- 
after be  by  law  accounted  for,  paid,  disbursed  and  disposed  of. 
(a)  All  fees  collected  under  the  provisions  of  subdivision  2  of 
this  section  shall  be  paid  by  the  registrar,  between  the  first  and 
fifth  days  of  the  month  following  receipt  thereof,  to  the  treas- 
urer of  the  state,  to  be  by  him  accumulated  as  and  for  an  assur- 
ance fund,  (b)  Should  there  be  a  surplus  in  any  year  derived 
from  fees  hereunder  other  than  those  provided  to  be  paid  to  the 
state  treasurer  for  an  assurance  fund,  such  surplus  shall  be 
carried  into  the  general  fund  and  be  subject  to  appropriation 
for  any  purpose.  In  case  such  fees  shall  not  amount  to  the  sum 
required  for  theadministration  of  this  act,  the  deficiency  shall 
be  paid  from  any  funds  in  the  county  treasury,  not  otherwise 
appropriated,  (c)  All  books,  blanks,  papers  and  other  things 
necessary,  including  clerks  for  the  purpose  of  carrying  out  the 
provisions  of  this  act,  shall  be  furnished  by  the  board  of  super- 
visors at  the  expense  of  the  county. 

Sec.  101.  RIGHT  OF  EMINENT  DOMAIN  NOT  AFFECTED: — Nothing 
in  this  act  shall  be  construed  to  in  any  wise  affect  or  modify  the 
exercise  of  the  right  of  eminent  domain.  When  any  suit  or 
proceeding  shall  have  been  brought  in  the  exercise  of  such  right 
for  the  taking  of  registered  land,  or  any  interest  therein,  or  to 
test  the  validity  of  any  such  taking,  or  to  ascertain  and  establish 
the  amount  of  damage  by  reason  of  any  such  taking,  it  shall  be 
the  duty  of  both  parties  to  the  proceedings  to  see  that  a  certified 
copy  of  the  judgment  or  decree  therein  is  duly  filed  and  a  memo- 
rial thereof  entered  upon  the  register;  (a)  but  in  the  case 
of  an  assessment  of  damages,  no  such  memorial  shall  be  entered 
by  the  registrar  until  such  damages  have  been  paid,  in  which 
event  the  register  shall  also  show  the  payment  of  such  damages ; 
provided,  however,  that  the  deposit  with  the  treasurer,  as  al- 
lowed by  law,  of  such  damages,  shall  be  deemed  a  payment 
thereof,  and  in  such  case  the  treasurer  shall  forthwith  file  with 
the  registrar  a  certificate  of  such  deposit,  and  thereupon  a  memo- 
rial thereof  shall  be  entered  upon  the  register,  (b)  Upon  the 
filing  of  the  certified  copy  of  the  order  or  decree  of  the  court 
and  the  payment  of  damages,  the  registrar  shall  note  on  the 
register  of  title  of  the  owners  whose  lands  have  been  appropri- 
ated, and  shall  register  in  the  name  of  the  person,  corporation, 
or  other  body  entitled  thereto,  the  title  of  the  land  taken,  and  is- 
sue a  certificate  therefor. 

Sec.  102.  PROPERTY  INDICES: — The  registrar  shall  keep  prop- 
erty indices,  the  pages  of  which  shall  be  divided  into  columns, 
showing,  first,  the  section  or  subdivision ;  second,  the  range  of 
block;  third,  the  township  or  lot;  fourth,  any  further  descrip- 


-105.]  ASSURANCE    FUND  105 

tion  necessary  to  identify  the  land ;  fifth,  the  name  of  the  reg- 
istered owner;  sixth,  the  volume;  and  seventh,  the  page  of  the 
register  in  which  the  lands  are  registered. 

Sec.  103.  NAME  INDICES: — He  shall  also  keep  name  indices, 
the  pages  of  which  shall  be  divided  into  columns,  showing  in 
alphabetical  order,  first,  the  names  of  all  registered  owners  and 
all  other  persons  interested  in  or  holding  charges  upon  register- 
ed land ;  second,  the  nature  of  the  interest ;  third,  a  brief  descrip- 
tion of  the  land;  fourth,  the  volume;  and  fifth,  the  page  of  the 
register  in  which  the  lands  are  registered. 

Sec.  104.  PARTITION  OF  REGISTERED  LAND: — (See  Sees.  84,  et 
seq.^An  owner  of  an  undivided  interest  in  registered  lands  may 
bring  an  action  for  the  partition  thereof.  A  notice  of  such  action 
shall,  at  the  time  of  the  commencement  thereof,  be  filed  with  the 
registrar  and  a  memorial  entered  by  him  upon  the  register.  A 
certified  copy  of  any  judgment  or  decree  rendered  in  pursuance 
of  such  action  shall  be  filed  with  the  registrar,  who  shall  there- 
upon issue  new  certificates  in  accordance  therewith. 

TORRENS  TITLE  ASSURANCE  FUND.IOS 

Sec.  105.  Subdivision  1.  The  state  treasurer  shall  keep  all 
sums  paid  to  him  by  the  registrars  under  the  provisions  hereof 
in  a  seprarate  fund  to  be  known  as  the  "Torrens  title  assurance 
fund,"  and  shall  keep  the  same  invested  and  reinvested  in  bonds 
of  the  United  States  or  of  the  State  of  California  or  of  any 
county  or  municipality  thereof,  the  income  derived  from  said 
investment  to  be,  as  the  same  is  received,  added  to  said  fund. 
Said  treasurer  shall  render  to  the  governor,  at  least  once  in  each 
fiscal  year,  a  full  and  detailed  report,  showing  all  receipts,  dis- 
bursements and  investments  on  account  of  such  fund. 

Subdivision  2.  Any  person  who,  without  fraud  or  negligence 
on  his  part,  is  deprived  of  any  interest  or  estate  in  land  through 
the  operation  of  any  provision  of  this  act  or  by  reason  of  the 
fraud,  forgery,  negligence,  omissioin,  mistake  or  misfeasance  of 
any  person,  and  who  is  precluded  from  recovering  such  interest 
or  estate,  may  commence  an  action  in  the  Superior  court  of  the 
county  in  which  the  land  or  a  part  thereof  is  situated,  to  recover 
not  over  the  fair  market  value  of  the  interest  or  estate  of  which 
he  has  been  deprived.  If  such  deprivation  has  been  caused  solely 
by  reason  of  any  act  of  any  registrar  or  deputy  registrar  in  the 
performance  of  official  duty  as  such,  the  state  treasuerer,  in  his 
official  capacity,  shall  be  the  sole  defendant.  If  such  depriva- 
tion has  been  caused  either  wholly  or  in  part  by  any  person  or 
persons  other  than  such  registrar  or  deputy  registrar,  while  act- 
ing in  the  official  performance  of  duty  as  such,  such  person  or 

""See  remarks  as  to  the  assurance  fund,  ante,  page  18. 


106  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.    105- 

persons  shall  be  joined  as  defendants  with  said  state  treasuerer. 

(a)  In  any  such  action  said  court  shall  have  jurisdiction,  after 
the  service  of  -summons,  as  provided  in  ordinary  actions  in  said 
court,  to  determine  the  reason  of  such  deprivation  and  to  render 
judgment  therein  accordingly,  either  against  said  state  treasuerr 
alone  or  against  him  and  all  or  any  of  the  other  defendants. 

(b)  In  any  action  where  there  are  defendants  other  than  said 
state  treasurer  against  whom  judgment  has  been  rendered,  exe- 
cution shall  first  issue  against  such  other  defendants  and  upon 
the  return  of  such  execution  unsatisfied,  either  in  whole  or  in 
part  and  upon  it  appearing  to  the  satisfaction  of  the  court  that 
said  execution  cannot  be  satisfied  out  of  the  property  belonging 
to  such  judgment  creditors  other  than  said  state  treasurer,  or 
where  judgment  is  had  against  said  state  treasurer  alone,  said 
court  shall  make  its  order  directing  the  payment  of  the  amount 
due  out  of  the  assurance  fund,  and  such  order  shall  constitute 
the  warrant  for  the  payment  of  the  same,  and  the  state  con- 
troller shall  thereupon  audit  and  certify  the   amount   of   such 
claim  in  the  same  manner  as  other  claims,  against  the  state  are 
audited,  and  the  state  treasurer  shall  thereupon  pay  the  amount 
of  said  claim  out  of  the  assurance  fund  without  any  other  act 
or  resolve  making  an  appropriation  therefor,     (c)     If  the  assur- 
ance fund  is  at  any  time  insufficient  to  pay  the  amount  of  any 
judgment  in  full,  so  much  thereof  as  can  be  paid  out  of  such 
fund  shall  be  paid,  and  the  unpaid  balance  shall  bear  interest 
at  the  legal  rate  and  shall  be  paid  out  of  the  first  moneys  com- 
ing into  such  assurance  fund,     (d)     The  attorney-general  shall 
defend  the  state  treasurer  in  all  actions  brought  under  the  pro- 
visions hereof,     (e)     If  the  person  who  is  deprived  of  land  or 
of  any  estate  or  interest  therein   in  the  manner  above  stated, 
has  a  right  of  action  or  other  remedy  for  the  recovery  thereof, 
he   shall   exhaust  such   remedy  before   resorting  to   the   action 
herein  provided,     (f)  The  provisions  of  this  section  shall  not 
deprive  the  plaintiff  of  any  action  in  tort  which  he  may  have 
against  any  person  for  loss  or  damage  or  deprivation  of  land, 
or  any  estate  or  interest  therein,  but  if  such  plaintiff  elects  to 
pursue  his  remedy  in  tort  and  also  brings  an  action  under  the 
provisions  of  this  section,  the  action  against  said  state  treasurer 
shall  be  held  in  abeyance  to  await  the  final  result  of  such  action 
in  tort,      (g)   In  every  case  in  which  payment  has  been  made 
by  the  state  treasurer  under  the  provisions  of  this  section,  the 
state  shall  be  subrogated  to  all  the  rights  of  the  plaintiff  against 
any  other  parties  or  securities,  and  the  state  treasurer  shall  en- 
force the  same  in  behalf  of  the  state.     Any  amounts  recovered 
by  reason  of  such  subrogation  shall  be  paid  into  the  state  treas- 
ury to  the  account  of  the  Terrens  title  assurance  fund,  after  de- 
ducting therefrom  the  proper  expenses  in  recovering  the  same. 

Subdivision  3.    The  assurance  fund  shall  not  be  liable  to  pay 


-108.]  APPEAL  107 

for  any  loss,  damage  or  deprivation  occasioned  solely  by  a 
breach  of  trust  on  the  part  of  any  registered  owner  who  is  trus- 
tee, or  by  the  improper  exercise  of  any  power  of  sale  in  a  mort- 
gage, nor  shall  any  plaintiff  recover  as  compensation  under  the 
provisions  of  this  act  more  than  the  fair  market  value  of  the  land 
or  of  the  estate  or  interest  held  by  him  at  the  time  when  he  suf- 
fered the  damage,  loss  or  deprivation  complained  of.  (/»)  Ac- 
tions for  compensation  out  of  the  assurance  fund  under  the  pro- 
visions of  this  act  shall  be  commenced  within  four  years  from 
the  time  when  the  right  of  action  accrued  or  they  shall  be  for- 
ever barred ;  provided,  that  if  at  the  time  the  right  of  action  ac- 
crued, the  person  entitled  to  bring  such  action  is  a  minor,  or 
insane,  or  imprisoned,  such  person  or  any  one  claiming  under 
him  may  commence  such  action  within  two  years  after  the  re- 
moval of  such  disability. 

Sec.  106.  IN  CASE  OF  FRAUD:104 — In  the  case  of  fraud,  any  per- 
son defrauded  shall  have  all  rights  and  remedies  that  he  would 
have  had  if  the  lands  were  not  under  the  provisions  of  this  act; 
provided,  that  nothing  contained  in  this  section  shall  affect  the 
title  of  a  registered  owner  who  has  taken  bona  fide  for  a  valu- 
able consideration,  or  of  any  person  bona  fide  claiming  through 
or  under  him. 

Sec.  107.  APPEAL: — In  case  of  an  appeal  from  any  proceed- 
ing under  this  act,  or  from  any  judgment,  order,  or  decree  af- 
fecting registered  lands,  the  clerk  of  the  court  in  which  the 
notice  of  appeal  is  filed  shall  forthwith  notify  the  registrar 
thereof,  [84]  and  thereupon  the  registrar  shall  enter  upon  the 
register  a  memorial  of  such  appeal. 

84.     (Sec.  107.)    Notice  of  appeal  given  to  registrar. 
Clerk's  office, 

County  of 

State  of  California, 

To  the  registrar  of  ~ county : 

You  are  hereby  notified  that  on  the day  of , 

19 ,  there  was  filed  in  this  office  a  notice  of  appeal  from  the 

decree  of  registration  entered- in  registration  proceed- 
ings case  No 

H.  J.  L., 
Clerk  of  Superior  Court 

Sec.  108.  DEPUTY  RECORDERS  AND  REGISTRARS: — The  county 
recorders  or  registrars  in  the  several  counties  shall  have  and 
they  are  hereby  granted  the  power  to  appoint,  whenever  the 
business  in  their  respective  offices  under  this  act  shall,  in  their 


io«This  section  is  a  duplicate  of  Sec.  37.    See  note  under  that  sec- 
tion. 


108  TORRENS  LAND  LAW  OF  CALIFORNIA  [SEC.   109- 

opinion,  justify  the  same,  one  or  more  deputies,  each  of  whom 
shall  be  an  attorney  admitted  to  practice  before  the  Supreme 
court  of  the  State  of  California  for  at  least  five  years  prior  to 
his  appointment,  in  good  standing,  skilled  in  the  examination 
of  titles  and  in  proceedings  under  this  act.  The  compensation 
of  such  attorneys  shall  be  such  as  may  be  agreed  upon  between 
them  and  the  registrar  subject  to  the  approval  of  the  board  of 
supervisors  of  the  county  and  shall  be  paid  in  the  same  manner 
that  the  salaries  of  other  deputies  are  paid.  Such  attorneys,  so 
appointed,  shall  be  competent  to  act  as  referees  when  appointed 
by  the  court  in  proceedings  under  this  act.  It  shall  be  the  duty 
of  said  attorneys  to  assist  the  registrar  in  all  matters  in  and 
arising  out  of  proceedings  urrder  this  act. 

Sec.  109.  SUBDIVIDING  REGISTERED  LAND: — The  owner  of  regist- 
ered land  may  plat  the  same  and  subdivide  it  into  lots  and 
blocks  in  like  manner  as  in  case  of  unregistered  land.  All  laws 
with  reference  to  the  subdivision  and  platting  of  unregistered 
land  shall  apply  with  like  force  and  effect  to  registered  land. 
Owners  of  subdivisions  transferring  lots  which  are  subject  to 
building  or  other  restrictions,  may,  at  their  own  expense,  furnish 
the  registrar  with  printed  forms  of  certificates  of  title  for  use 
by  the  registrar.  Such  printed  forms  must  conform  to  the 
adopted  size,  quality  of  paper,  workmanship  and  form  and  must 
first  be  submitted  to  the  registrar  for  his  approval ;  provided, 
however,  the  registrar  shall  have  no  authority  over  what  restric- 
tions shall  be  included. 

Sec.  110.  PERMANENCY  OF  DOCUMENTS: — It  shall  be  the  duty 
of  the  registrar  to  require  that  all  documents  offered  for  filing 
concerning  registered  land,  shall  be  made  out  with  a  view  to 
permanency.  The  registrar  may  refuse  to  accept  any  document 
for  filing  which  in  his  judgment  is  wholly  or  partly  written, 
made  out  or  filled  in  with  inferior  ink  or  faded  typewriter  rib- 
bon and  likely  to  fade  rapidly  and  may  require  such  documents 
to  be  redrawn  in  India  or  indelible  ink  to  insure  permanency, 
(a)  Registrars  must  in  every  instance  in  making  out  new  cer- 
tificates of  title,  memorials  or  entries  of  any  kind  in  connection 
with  registered  land,  use  India  ink  for  handwriting  and  indeli- 
ble ink  for  typewriter  or  rubber  stamp. 

Sec.  111.  FRAUD  AND  FORGERY,  HOW  PUNISHED: — Whoever 
fraudulently  procures,  assists  in  fraudulently  procuring,  or  is 
privy  to  the  fraudulent  procurement  of  any  certificates  of  title 
or  other  instrument,  or  of  any  entry  in  the  register  or  other 
book  kept  in  the  registrar's  office,  or  of  any  erasure  or  alteration 
in  any  entry  in  any  said  book,  or  in  any  instrument  authorized 
by  this  act,  or  knowingly  defrauds  or  is  privy  to  defrauding 
any  person  by  means  of  a  false  or  farudulent  instrument,  certi- 


-115.]  FRAUD  AND  FORGERY  109 

ficate,  statement,  or  affidavit  affecting  registered  lands,  shall  be 
guilty  of  a  felony,  and  fined  not  exceeding  five  thousand  dollars, 
or  be  imprisoned  not  exceeding  five  years  nor  less  than  one  year, 
or  either  or  both  such  fine  and  imprisonment. 

Sec.  112.  Whoever  (1)  forges,  or  procures  to  be  forged,  or 
assists  in  forging  the  seal  of  the  registrar,  or  the  same,  signa- 
ture, or  handwriting  of  any  officer  of  the  registry  office  in  cases 
where  such  officer  is  expressly  or  impliedly  authorized  to  affix 
his  signature;  or  (2)  fraudulently  stamps,  or  procures  to  be 
stamped,  or  assists  in  stamping  any  document  with  any  forged 
seal  of  said  registrar;  or  (3)  forges,  or  procures  to  be  forged, 
or  assists  in  forging  the  name,  signature,  or  handwriting  of  any 
person  whomsoever  to  any  instrument  which  is  expressly  or 
impliedly  authorized  to  be  signed  by  such  person ;  or  (4)  uses 
any  document  upon  which  any  impression,  or  part  of  the  im- 
pression, of  any  seal  of  said  registrar  has  been  forged,  know- 
ing the  same  to  have  been  forged,  or  any  document  the  signature 
to  which  has  been  forged,  knowing  the  same  to  have  been  forged ; 
or  (5)  swears  falsely  concerning  any  matter  of  procedure  made 
and  done  in  pursuance  of  this  act,  shall  be  guilty  of  a  felony 
and  fined  not  exceeding  five  thousand  dollars  or  be  improsined 
not  exceeding  ten  years  nor  less  than  one  year,  or  either  or  both 
such  fine  and  imprisonment. 

Sec.  113.  No  proceeding  or  conviction  for  any  act  hereby 
declared  to  be  a  felony  shall  affect  any  remedy  which  any  per- 
son aggrieved  or  injured  by  such  act  may  be  entitled  to  at  law 
or  in  equity,  against  the  person  who  has  committed  such  act,  or 
against  his  estate,  or  against  the  registrar,  or  upon  his  bond. 

Sec.  114.  REGISTRARS'  RULES: — Registrars  shall  not  make  any 
rules  or  regulations  that  work  a  hardship  or  inconvenience  upon 
owners  or  others  desiring  to  avail  themselves  of  the  provisions 
of  this  act,  who  live  at  a  distance  from  the  office  of  the  regis- 
trar and  shall  in  writing  consent  to  accept  notice  of  all  proceed- 
ings, of  which  notice  is  required,  by  mail  and  in  such  cases  reg- 
istrars shall  assist  those  who  desire  to  use  the  mails  in  connec- 
tion with  registered  lands  in  every  way  possible.  Such  docu- 
ments as  are  sent  by  mail  shall  be  entirely  at  the  risk  of  the 
owner  and  if  lost,  the  netire  expense  of  replacing  same  shall  be 
borne  by  the  owner. 

Sec.  115.  ACT  CONSTRUED  LIBERALLY: — This  act  shall  be  con- 
strued liberally  so  far  as  may  be  necessary  for  the  purpose  of 
effecting  its  general  intent. 


SURVEYS 


It  is  provided  by  Sec.  6  of  this  act  that  a  plat  or  plan  of  sur- 
vey of  the  land  made  by  the  county  or  a  licensed  surveyor  must 
accompany  the  application  unless  such  land  is  part  of  a  city,  town 
or  subdivision  of  which  a  map  or  plat,  or  an  official  map  is  on 
file  in  the  office  of  the  county  recorder  and  upon  such  map  the 
land  appears  in  such  manner  that  it  can  be  identified  thereon  by 
reference. 

Such  survey  must  show  the  boundaries  of  the  land  and  its 
relation  to  adjoining  lands  and  streets,  and  any  encroachments. 

The  court  may  in  any  case  before  decree  require  a  survey  to 
be  made  to  determine  the  exact  boundaries,  or  to  determine  the 
line  of  a  public  or  private  way  by  which  the  land  is  bounded. 

DUTY  OF  SURVEYORS,  UNDER  THE  CALIFORNIA  STATUTES. 
General  Laws  of  California,  Chap. 


Sec.  5.  Every  licensed  surveyor  shall  have  a  seal  of  office,  the 
impression  of  which  must  contain  the  name  of  the  surveyor,  his 
principal  place  of  business,  and  the  words,  "licensed  surveyor;" 
and  all  maps  and  papers  signed  ,by  him,  and  to  which  said  seal 
has  been  attached,  shall  be  prima  facie  evidence  in  all  the  courts 
of  this  State. 

Sec.  7.  Every  licensed  surveyor  is  authorized  to  administer 
oaths,  when  it  becomes  necessary  to  take  testimony  to  identify  or 
establish  old  or  lost  courses  ;  or  if  a  corner  or  monument  be  found 
in  a  perishable  condition  and  it  appears  desirable  that  evidence 
concerning  such  corner  or  monument  be  perpetuated  ;  or  when- 
ever the  importance  of  the  (survey)  makes  it  desirable,  to  ad- 
minister an  oath,  for  the  faithful  performance  of  duty  to  his 
assistants.  A  record  of  such  oaths  shall  be  preserved  as  part  of 
the  field  notes  of  the  survey. 

Sec.  8.  Every  licensed  surveyor  is  hereby  authorized  to  make 
surveys  relating  to  sale  or  subdivision  of  lands  the  retracing  or 
establishing  of  property  or  boundary  lines,  public  roads,  streets, 
alleys,  or  trails  ;  and  it  shall  be  the  duty  of  each  surveyor,  when- 
ever making  any  such  surveys,  except  those  relating  to  the  re- 
tracing or  subdivision  of  cemetery  or  town  lots,  whether  the  sur- 
vey be  made  for  private  persons,  corporations,  cities  or  counties, 


SURVEYS  111 

to  set  permanent  and  reliable  monuments,  and  such  monuments 
must  be  permanently  marked  with  the  initials  of  the  surveyor 
setting  them. 

Sec.  9.  Within  sixty  days  after  a  survey  relating  to  the  sale 
or  subdivision  of  lands,  the  retracing  or  establishing  of  property 
or  boundary  lines,  public  roads  or  trails,  original  cemetery  or 
town  sites,  and  their  subdivisions,  has  been  made  by  a  licensed 
surveyor,  he  shall  file  with  the  recorder  of  the  county  in  which 
such  survey,  or  any  part  thereof,  lies,  a  record  of  survey.  Such 
record  shall  be  made  in  a  good  draughtsmanlike  manner,  on  one 
or  more  sheets  of  firm  paper  of  the  uniform  size  of  21  by  30 
inches.  This  record  of  survey  shall  be  either  an  original  plat, 
or  a  copy  thereof  and  must  contain  all  the  data  necessary  to  en- 
able any  competent  practical  surveyor  to  retrace  the  survey.  The 
record  of  survey  must  show: — 

All  permanent  monuments  set,  describe  their  size,  kind  and 
location,  with  reference  to  the  corners  which  they  are  intended 
to  perpetuate; 

All  bearing  or  witness  trees  marked  in  the  field ; 

Complete  outlines  of  the  several  tracts  or  parcels  of  land  sur- 
veyed within  the  courses  and  lengths  of  boundary  lines ; 

The  Angles,  as  measured  by  Vernier  readings,  which  the  lines 
of  blocks  or  lots,  if  the  record  relate  to  an  original  town  site  sur- 
vey, make  with  each  other  and  with  the  center  lines  of  adjacent 
streets,  alleys,  roads,  or  lanes ; 

The  variation  of  the  magnetic  needle  with  which  old  lines 
have  been  retraced ; 

The  scale  of  the  map,  the  date  of  the  survey; 

A  proper  connection  with  one  or  more  points  of  an  original 
or  larger  tract  of  land,  and  the  name  of  the  same ; 

The  name  of  the  grant,  or  grants,  or  of  the  township  and  range 
within  which  the  survey  is  located ; 

The  signature  and  seal  of  the  surveyor. 

Provided  that  nothing  in  this  section  shall  require  record  to 
be  made  of  surveys  of  a  preliminary  nature,  where  no  monu- 
ments or  corners  are  established. 

Sec.  10.  The  record  of  survey  thus  filed  with  the  county  re- 
corder of  any  county  must  be  by  him  pasted  into  a  stub  book  pro- 
vided for  that  purpose,  and  he  must  keep  a  proper  index  of  such 
records,  by  name  of  owner,  by  name  of  surveyor,  by  name  of 
grant,  city  or  town  and  by  United  States  subdivisions ;  and  in  all 
cases  where  such  maps,  plats,  diagrams,  or  descriptions  are  filed 
by  a  state  licensed  land  surveyor  the  county  recorder  shall  make 
no  charge  for  filing  and  indexing  such  records  of  surveys. 

Sec.  11.  *  *  *  *  A  violation  of  section  9  of  this  act  shall  be  a 
misdemeanor,  and  any  person  convicted  of  such  violation  shall 


112  TORRENS  LAND  LAW  OF  CALIFORNIA 

be  punished  by  a  fine  not  to  exceed  one  hundred  dollars,  or  im- 
prisonment in  the  county  jail  not  exceeding  thirty  days. 

GENERAL  REQUIREMENTS. 

In  the  office  of  the  county  surveyor  of  Los  Angeles  County. 

Nothing  less  substantial  than  a  two  inch  pipe,  with  a  tack  and 
plug  driven  into  the  pipe  will  be  considered  as  a  permanent 
monument,  and  must  be  at  least  two  and  a  half  feet  long,  and 
driven  two  feet  into  the  ground. 

Maps,  where  property  is  offered  for  dedication  for  public  pur- 
poses to  the  city  of  Los  Angeles,  or  the  county,  must  be  accom- 
panied by  a  blue  print  of  the  map,  together  with  a  certificate  of 
title. 

All  roads  offered  to  the  county  of  Los  Angeles  for  highway 
purposes  must  be  forty  feet  or  more  in  width. 

The  scale  to  which  the  map  is  drawn  and  a  north  point  must 
be  given  on  each  sheet. 

Total  distance  of  exterior  boundaries  must  be  shown  on  maps. 

Form  for  Report  of  Survey. 
PLAT  OF  SURVEY. 

By  C.  H.  T.,  Being  part  of  Rancho  San  Antonio  (which  is  also 
part  of  the  Rancho  La  Laguna),  the  property  of  Mrs.  Arcadia 
Bandini  de  Baker. 

In  T N.,  R W.,  S.  B.  M.,  Los  Angeles  County, 

California. 

(Map.) 

(With  notes  and  descriptions  as  required  by  statute.) 
Scale  

I, „ hereby  certify  that  I  am  a  li- 
censed surveyor  of  the  State  of  California,  and  that  this  map 

consisting  of sheets,  correctly  represents  a  survey 

made  under  my  supervision,  (date),  and  that  all  monuments 
shown  herein  actually  exist,  and  their  positions  are  correctly 
shown. 

Witness  my  hand  and  seal  this day  of _  19 


(SEAL)  Licensed  Surveyor. 


TABLE  OF  CASES 


Page 

Arnold   vs.   Smith,   121   Minn.   117 72 

Baart  vs.  Martin,  99  Minn.  197 22,53,72 

B.  and  S.  Co.  vs.  Hopkins,  96  Minn.  119 48 

Battelle  vs.  N.  Y.,  N.  H.,  and  H.  R.  R.  R.,  211  Mass.  442 20 

Bjork    vs.    Glos,    256    111.    447 58 

Brace  vs.  Superior  Land  Co.,  65  Wash  681 81 

Brooke  vs.   Glos,   243   111.   392 23 

Browning,   Petitioner,  Mass.   Land   Court,   5 20 

Carlson  vs.   Glos,   257   111.   149 58 

Cowan  vs.   Glos,   255   111.   377 21 

Crabbe  vs.   Hardy,  135   N.   Y.   S.,   119 33,35 

Dewey   vs.    Kimball,    89    Minn.    454 41 

Doyle  vs.  Wagner,  108  Minn.  442 53 

Duffy  vs.  Rodriguez,  124  N.  Y.  S.  529 22 

First  Nat  Bank  vs.  City  of  Woburn,  192  Mass.  220 32 

Foss  vs.   Atkins,   204   Mass.   337 60,  61 

Gloss  vs.   Kingman,   207   111.   26 21 

Gloss    vs.    Mickow,    211    111.    117 32,33 

Gloss  vs.   Bragdon,  229   111.   223 21,31 

Gloss  vs.  Wheeler,   229  111.   272 33,  35 

Gloss   vs.    Cesna,    207    111.    69 21, 42, 49 

Gloss  vs.  Hoban,  212  111.  222 21,  58 

Gloss   vs.    Holberg,    220    111.    167 21,33,42,49 

Gloss   vs.    Murphy,    225   111.    58 39,49,60 

Gage  vs.  Consumers  E.  L.  Co.,  194  111.  30 21,  33,  57 

Harper,  Admin.,  vs.  Rowe,  53  Calif.  233 35 

Hawes  vs.  U.  S.  Trans.  Co.,  127  N.  Y.  S.  632 44 

Henry  vs.   White,   123   Minn.    182 72 

Jackson  vs.    Gloss,   243   111.    280 23 

Keeney    vs.    Gloss,    258    111.    555 58 

Lachman  vs.  People,  127  N.  Y.  S.  910 40 

McMahon   vs.    Rowley,    238   111.   31 58,60 

Mihalik  vs.   Gloss,   247  HI.   597 23 

Mooney   vs.    Valentynnovics,    262    111.    355 31, 44, 49 

Mundt  vs.  Gloss,  231  111.  158 50 

Natl.  Bond  and  Security  Co.  vs.  Alderson,  99  Minn.  137 20,  48 

O'Laughlan   vs.    Covell,    222    111.    162 43,58 

Partenfelder  vs.   People,  157  N.  Y.  462 40 

People  vs.  Simon,  176  111.  165 76 

Peters  vs.  City  of  Duluth,  119  Minn.  96 20 

Peters  vs.  Dicus.   254  111.   379 33 

Pollard  vs.  Burchard,  199  Mass.  376  32 

Riley    vs.    Pearson,    120    Minn.    210 22 

Robinson  vs.   Kerrigan,  151  Cal.   42,  full  decision 10,77 

Robinson   vs.   Richards,   209   Mass   295 20 

Reed  vs.   Siddall,  94   Minn.  216 48 

Santa  Barbara  vs.  S.  &  L.  Soc.,  137  Calif.  463 39 

State,  ex  rel.  vs.  Westfall,  85  Minn.  446 56 

Sunderman  vs.  People,  148  N.  Y.  124 44 

The  City  and  Sub.  House  Co.  vs.  People,  157  N.  Y.  459 40 

Tobias  vs.   Kaspzyk,   247   111.   80 32,33 

Tower  vs.  Gloss,   256   111.   121 43 

Tyler  vs.  Judges,  175  Mass.  71 23 

Waugh  vs.  Gloss,  246  111.  604 21 

Woods  vs.  Gloss,  257  HI.  125 33 


IN_DEX 

Section  Page 

Abstract  of  Title — 

when  to  accompany  application 6            16, 35 

required  when  adverse  possession  not  proven 6                 36 

(6)  Order  for 37 

need  not  antedate  decree  determining  title 6                 35 

title  insurance  policy  may  be  starting  point 6                 35 

how  verified  by  searcher G                 35 

who  entitled  to  make,  undertaking  required 6                 36 

(7)  Bond  of  person  making,  approved 37 

(8)  Order  for  increase  in  amount  of  bond 37 

referred  to  Examiner  of  Titles.  See  Examiner  of  Titles. 

(26)  Order  referring  to  examiner 56 

when  returned  to  applicant 20  61 

Act 

to  be  construed  liberally   115  109 

Action — See  Suit 
Address — See  Residence 
Adjoining  land — 

name  and  address  of  owner  stated  in  petition 5  23,  28 

owner  of  must  assent  or  be  served  with  notice.    See 
Assent. 

Administrator — See  Executor 
Administration  of  estates — 

registration  may  be  included  in  proceedings  for 17,  46  54,  74 

Advantages  of  registration  system 5 

Adverse  possession — 

when  alleged  in  the  petition  6             27,  32 

establishing  title  by,  note  33 

defined  by  the  code,  note  34 

character  of,  must  be  stated  in  petition 6                 33 

how  proven,  note 35 

when  not  proven  abstract  required 6                 36 

(6)  Order  for  abstract 37 

when  required  in  registry  of  tax  title 8                  38 

title  to  registered  land  not  acquired  by 35                 72 

Affidavit — 

(17)  Of  service  of  notice,  by  other  than  sheriff 46 

(18)  Of  service  by  mail 46 

by  transferee  of  registered  land 58                 81 

(53)  Affidavit 82 

(54)  Affidavit  by  executor,  etc.,  transferee 82 

Agreement — 
what  implied  by  registration 44  74 

Alteration  of  certificate — See  Certificate  of  title 
Amendment  of  application — See  Application 
for  registration 

Appeal — 

from  decree  for  registration 15, 107  50, 107 

six  months  allowed  for,  note 50 

notice  of,  given  to  registrar 107  107 

(84)  Notice  107 


INDEX  115 

Section  Page 

Appearance — 

time  for,  after  service  12  44 

Applicant  for  registration — 

how  described  in  petition  5  21 

claiming  title  in  severally  5  22 

must  show  title  in  himself,  note 31 

on  death  or  disability  of,  proceedings  continued 21  61 

(33)  Representative  made  party 61 

on  transfer  of  interest  of 21  61 

(34)  Action  continued  for  benefit  of  transferee 62 

(35)  Transferee  substituted 62 

Application  for  registration — See  also  Petition 

how  made  by  petition   5  21 

when  to  be  accompanied  with  map  or  plat 6  31 

of  tax  title.    See  Tax  title. 

amendment  of,  how  made  9  39 

(9)  Order  for  amended  petition 39 

(10)  Same  on  motion  of  applicant 39 

filing,  notice  of  lis  pendens 10  40 

notice  of  filing,  how  given  and  served.   SeeNotice. 

persons  claiming  interest  may  object  to 12  43 

(19)  Answer  objecting  to  registration 46 

set  down  for  hearing 14  48 

may  be  withdrawn    20  60 

(31)  Request  for  withdrawal 61 

(32)  Order  allowing  withdrawal 61 

Arm  of  the  sea — See  Sea 
Assent  to  registration — 

by  adjoining  property  owners   12  43, 31 

by  person  claiming  interest  12  44 

(20)  Assent  to  registration 47 

may  be  attached  to  petition,  note  30 

form  of,  attached  to  petition  30 

Assessment — 

noted  on  certificate  24  66 

sale  for  non-payment  of.    See  Tax  sale. 

registered  land  held  subject  to  what  special 34  71 

for  public  improvement,  notice  of 94  97 

Assignee  in  insolvency — 

certificate  to,  must  show  name  of  insolvent 23  63 

same  when  transferee  in  deed  58  82 

has  no  power  of  sale  without  order  of  court 74  87 

sale  made  by,  confirmed  by  the  court 74  87 

what  the  certificate  to  the  purchaser  shall  contain    74  87 

Assurance  fund — 

comment  on   18 

how  accumulated  by  the  State  Treasurer  100  104 

shall  be  kept  invested  105  105 

not  liable  for  payment  of  loss,  when 105,  Sub.  3  107 

nor  for  more  than  fair  market  value 105,  Sub.  3  107 

time  limit  for  actions  for  compensation 105,  Sub.  3  107 

payments  out  of,  how  audited  and  paid 105,  Sub.  2  106 

when  not  sufficient  to  pay  claims 105,  Sub.  2  106 

other  remedy  must  be  exhausted 105,  Sub.  2  106 

when  payment  will  be  ordered  out  of 105,  Sub.  2  106 

when  payment  made,  State  subrogated 105.  Sub.  2  106 


116  INDEX 

Section  Page 

Attachment — 

set  forth  in  decree 16  49 

when  proceedings  in,  deemed  Us  pendens 89  95 

disposal  of  to  be  certified  to  registrar 90  96 

certificate    by    sheriff   authority    for    registrar    to 

cancel,  etc 96  98 

levy  not  a  Hen  until  certified  to  registrar 92  96 

Attorney  at  law — 

qualifications  for  appointment  as  deputy  registrar. ...  108  108 

Attorney  general — 

when  notice  of  application  shall  be  served  on 13  48 

shall  defend  the  state  treasurer  in  suit 105  106 

Attorney  in  fact — 

power  of  attorney  filed  with  registrar 66  85 

may  have  certified  copy  of  the  power  of  attorney. ...     66  85 

revocation  of  power  of,  registered  66  85 

Bill — See  Suit 

Bond,  official — 

of  recorders,  applies  to  duties  as  registrars 2  19 

to  be  given  by  title  examiners 6  36 

qualification  and  liability  of  sureties  on 6  36 

(7)  Order  approving  bond  37 

(8)  Order  for  increase  in  amount  of 38 

Books — 

land  register  docket  to  be  kept  by  county  clerk 6  36 

showing  to  whom   certificates  are  issued,   kept  by 

registrar 22  62 

form  of 62 

"Register  of  Titles"  for  entry  of  certificates 29  70 

form  of  64 

to  be  furnished  by  Board  of  Supervisors 100  104 

Boundaries — 

survey  to  determine  may  be  ordered 6  32 

(4)   Order  for  survey  36 

Certificate — 

of  service  to  be  attached  to  notice 54  79 

(51)  Certflcate  of  service  80 

of  officer  making  sale  in  partition,  required 86  94 

(69)  Certificate  of  officer  making  sale 95 

of  satisfaction   of  suit,   etc.,  required 90,96  95,98 

(74)  Certificate  of  satisfaction   98 

of  levy  on  registered  land  required 92  96 

(70)  Certificate  of  levy  96 

of  release  of  levy,   required 90,  96  95,  98 

(75)  Certificate   of   release   of   levy 98 

Certificate  of  title — 

filed  in  all  counties  in  which  any  part  of  land  lies..       5  23 

issued  by  registrar,  when  15,  22  50,  62 

to  whom  issued  and  what  to  contain 15,  23,  24       60-63,  65 

no  particular  form  required 24  65 

issuance  to  be  recorded  22  62 

made  in  duplicate,  numbered,  dated  and  sealed 23  63 

original,  what  constitutes   23  64 

entered  in  "register  of  titles" 23,  29  63,  70 

form  given    24  65 

(36)  Form  64 


INDEX  117 

Section  Page 

certified  copy  issued  on  loss  of  duplicate 27                 67 

(39)  Application  for 67 

(40)  Order  granting  request,  without  notice....  67 

(41)  Notice  of  application  ordered 68 

(42)  Order  granting  request  after  hearing 68 

certified  copy  to  be  used  as  evidence 27                 67 

(43)  Order  for 68 

duplicate,  a  copy  of  the  original 23                 63 

issued  to  owner  of  the  land 23                  63 

receipt  for,  to  be  taken 22,  30  62,  YO 

witnessed  or  acknowledged  30                 VO 

book  showing  to  whom  delivered  22                 62 

form  for 62 

plat  made  on 65 

if  lost.     See  Loss  of  duplicate  certificate. 

endorsement  on,  sufficient  to  transfer  property 53                  '/9 

must  be  presented  on  the  filing  of  instrument 60               82 

except  on  order  of  Court 60 

(56)   Order  allowing  memorial,  without  duplicate 

how  issued  to  tenants  in  common 25                  66 

several  may  be  put  in  one,  or  one  made  several 26                 66 

memorial  on.   See  Memorials. 

alteration  and  correction  of  certificate  or  memorial: 

if  owner's  name  is  incorrect  or  changed 28                  68 

(44)  Application  for  change  of  name 68 

(45)  Order  granting — without  notice 69 

(46)  Order  for  correction,  after  hearing 69 

only  made  as  here  provided  97                 99 

applied  for  by  petition  98                 99 

grounds  for 98                  99 

(76)  Petition    100 

(77)  Order  that  summons  issue  100 

(78)  Summons    101 

(79)  Order  for  correction  by  consent 101 

(80)  Same,  on  hearing  101 

penalty  for  fraundulently  making  Ill               108 

new  certificate  issued  to  purchaser 48                  76 

court's  ruling  as  to  certificate  after  first,  note 76 

notation  made  on  old  certificate  48                 77 

(48)  Memorial  

when  part  only  transferred   49                  77 

for  lots  in  subdivision 49                  77 

(49)  Endorsement  on  certificate  of  subdivided  tract  78 
printed  forms  may  be  furnished  for  lots 109               108 

transfers,  mortgages  and  leases,  how  noted  on 55                 80 

endorsement  on,  when  transfer  subject  to  tax  sale. .  56                 81 

of  affidavit  of  transferee '.  58                 81 

of  instrument  creating  charge 60                 82 

when  transfer  is  in  trust 67                  86 

of  tax  deed.  See  Tax  Deed. 

order  for,  in  decree  entered  in  probate,  insolvency  or 

equity  proceedings  relating  to  registered  land 72                 87 

(59)  Order  in  decree  for  transfer,  etc.,  that  certifi- 
cate issue  or  memorial  be  made 87 

exceptions  in  sec.  34  printed  on 71 

conclusive  evidence  of  valid  title  in  what  suits 40, 41  73 

in  favor  of  all  persons  depending  on  76                 88 

in    sales    by  executors,  issued  after  confirmation .  74,  75,  76  87,  88 

(60)  Order    for    certificate 88 

(62)  Same 88 


118  INDEX 

Section  Page 

to  be  made  with  India  and  indelible  ink 110  108 

penalty  for  fraudulently  procuring Ill  log 

Certified  copy — 

of  decree  filed  with  registrar  15,  22  60,  62 

of  certificate  of  title.    See  Certificate  of  Title. 

of  register  received  in  evidence  42  73 

of  petition  for  registration.    See  Petition  for  Registra- 
tion. 

of  instruments  to  be  furnished  by  Registrar 51  78 

recived  as  the  original 52  79 

issued  and  marked  when  not  enough  parts  of  instru- 
ments        62  84 

have  force  and  effect  of  duplicates  62  84 

transferee  of  charge  on  land  entitled  to 63  84 

of  power  of  attorney  issued  to  attorney 66  85 

of  decree,  filed  by  executor  73  87 

of  report  of  commissioners  in  partition,  filed 85  94 

Change  of  address — See  Residence 

Charge  on  land — 

shall  not  be  registered,  unless  fee  is  first  registered . .       7  38 

shall  be  noted  on  certificate  7, 15,  23,  24,  93      38,  50,  63, 

set  forth  in  decree  15-49  [65, 97 

referred  to  by  book  and  page  15  50 

title  subject  only  to  those  noted,  except 7,34,39       38,71,73 

owner  not  affected  by  notice  of  unregistered 36  72 

endorsement  made  when  instrument  creating  filed ...     60  82 

may  be  assigned  in  whole  or  in  part 63  84 

(57)  Memorial  of  assignment 84 

if  assigned  in  part,  priorities  must  be  stated 63  84 

(57a)  Memorial  of  assignment  of  part 84 

how  release  of  effected 64  85 

(57b)  Memorial  of  release  of  charge 85 

enforced  as  in  other  cases  65  85 

(58)  Notice  of  pendency  of  suit  to  enforce 85 

Chicago — 

Torrens    system   in 9 

City,  town  or  county — 

when  land  part  of,  in  subdivision,  how  described  in 

petition 6  31 

public  improvements  made  in,  notices  to  be  given ....     94  97 

(71)  Notice  of  ordinance 97 

(72)  Notice  of  repeal  of  ordinance  97 

(73)  Notice  that  lien  for,  satisfied  98 

Claims — See  Charge  on  land 
Clerk  of  county — See  County  clerk 

Clerk  of  court — See  also  County  clerk 

application  for  decree  by  tax  purchaser  filed  with 78  90 

shall  certify  disposal  of  suit,  etc.,  and  satisfaction  of 

judgment  90,  95 

shall  certify  judgment,  etc.,  to  registrar 91  96 

his  certificate  authority  for  registrar  to  act 96  98 

(74)  Certificate  of  dismissal  or  satisfaction 98 

shall  notify  registrar  of  appeal 107  107 

(84)  Notice  of  appeal  given  registrar 107 

Clerks — 

under  this  act  furnished  by  board  of  supervisors 100  104 


INDEX  119 

Section  Page 

Commissioners  in  partition — 
when  report  setting  off  registered  land  confirmed,  cer- 
tificate will  be  issued 85  94 

Community  property — 

defined  by  code,  note   22 

petition  must  state  whether  or  not 5  22 

both  spouses  must  join  in  application  for  registration  5  23 

court  will  determine  as  to  14  49 

found  in  decree  61 

certificate  shall  state  as  to , 15  50 

both  spouses  must  join  in  disposal  of  registered 57  81 

affidavit  of  transferee  must  state  as  to 58  81 

Compensation — 

of  registrars  and  deputies  1, 108          19, 107 

of  examiners  of  titles 18  56 

Confirmation — 

of  sales  made  by  executors,  etc.,  conclusive  evidence 

of  regularity  of  sale  74  87 

of  report  of  commissioners  in  partition 85  94 

of  sale  in  partition  proceedings 86  94 

Consent  to  registration — See  Assent 

Contract — 

no  unregistered  shall  prevail  against  title  of  reg- 
istered owner 39  73 

for  purchase  of  real  estate,  certificate  conclusive  evi- 
dence in  suit  to  enforce  40  73 

for  sale  of  land  becomes  charge  upon  registration 59  82 

Corporation — 

application  for  registration,  how  made 5  21,  23,  29 

petition  by,  form 29 

for  insuring  titles  must  enter  into  undertaking 6  36 

how  to  verify  abstracts   6  35 

dissolution  of,  ground  for  altering  certificate 98  99 

Correction  of  certificate — See  Certificate  of 

Title 
Cost — 

for  examination  of  abstract,  by  whom  paid 18  56 

for  making  change  in  certificate,  by  whom  paid 98  100 

County — 

shall  pay  expense  of  books,  blanks,  papers  and  clerks 
under  this  act 100,  Sub.  3  104 

County  clerk — See  also  Clerk  of  court 

petition  for  registration  filed  with  5  21 

and  by  him  endorsed  and  entered  in  the  Land  Reg- 
ister Docket 6  36 

to  return  papers  to  applicant,  when 20  61 

certificate  of  service,  conclusive  proof 54  79 

certificate  of  dismissal  of  suit  by 90  96 

Court — 

petition  for  registration  to  Superior,  of  county 5  21 

Damages — 

for  taking  registered  land  paid  before  judgment  will 
be  registered  101  104 


120  INDEX 

Section  Page 

Date  of  Registration — 

shall  be  as  of  the  date  of  filing  of  the  petition 15  60 

of  deed,  instrument  or  notice  shall  relate  back  to  time 

of  filing  in  the  registrar's  office 32  70 

Dealings — 

with  land  brought  under  this  act  deemed  to  be  subject 

to  Its  terms   44  73 

Death — 

of  applicant,  proceedings  continued  21  61 

(33)  On  death  of,  representative  made  party 61 

Deceased  Person — 

registration  of  estate  of.  See  Executor. 

Decree — 

for  registration.    See  Registration, 
showing  title  under  tax  deed  of  registered  land.    See 
Tax  Deed. 

Deed — See  Instrument  of  transfer ;  Trust  Deed 
Defendant  in  registration — 

so  named  in  act  and  caption 23 

Deputy  recorders — 

shall  be  deputy  registrars  1  19 

Deputy  registrars — 

who  are,  their  duties,  and  laws  governing 1,  2, 3  19 

prohibited  from  practicing  law 4  19 

acting  as  searchers  of  titles 4, 108          19, 108 

one  or  more  may  be  appointed  in  each  county 108  107 

may  act  as  referees,  when  appointed  by  court 108  108 

qualification  and  compensation  of 108  108 

Disability — 

nature  of  must  be  stated  in  petition 5       22,25,26 

stated  in  the  decree 5  49 

stated  in  the  certificate 23  63,  64 

person  under,  guardian  ad  litem  for 13  48 

(21)  Appointment  of  guardian  ad  litem 48 

decree  shall  state  who  acting  for  him,  his  authority  15  49 

registration  of  deed  made  by,  void 38  73 

action  for  registration  brought  by  guardian 5  23,  28 

time  limitation  for  adverse  action  by 45  74 

action  for,  by  whom  brought 45  74 

when  suit  for  compensation  out  of  assurance  fund 

brought  by  105,  Sub.  3  107 

Discharge — See  Charge  on  land 

Divorce — 

change  of  name  made  by,  changed  in  the  certificate. 
See  Certificate  of  title. 

Documents — 

for  filing  made  with  view  to  permanency 110  108 

penalty  for  forging 112  109 

sent  by  mail  at  the  risk  of  the  sender 114  109 

Drains — See  Streets 

Duplicate  instruments — 

only  one  of  the  parts  filed,  notations  on  others 61  83 


INDEX  121 

Section  Page 

Duplicate  certificate — See  Certificate  of  title 

loss  of.    See  Lose  of  Duplicate  Certificate. 

Easement — 

ownership  of  not  sufficient  for  registration 5  21 

petition  must  state  as  to 5  22 

set  forth  in  decree 15  49 

noted  on  certificate 24  65,64 

when  registered  land  subject  to,  though  not  noted  on 

certificate  34  71 

Ejectment — 

in  action  for,  the  certificate  conclusive  evidence  of 
valid  title 41  73 

Eminent  domain — 

right  of  not  affected  by  this  act 101  104 

certified  copy  of  judgment  filed  and  registered Ill  104 

Encroachments — 

on  land  land  to  be  shown  in  report  of  survey 6  32 

Endorsement — 

upon  duplicate  certificate  sufficient  to  transfer  title, 

form  53  79 

on  instruments  presented  for  filing  with  hegistrar 47  75 

(47)  Notations  on  back  of  instrument  76 

on  deed  or  voluntary  instrument  offered  for  registra- 
tion        54  79 

includes  endorsement  on  certificate  of  title 54  79 

Entry — 

penalty  for  fraudulently  procuring Ill  108 

no  person  shall  make,  on  land  adversely  to  title  after 
one  year 45  74 

Equity  proceedings — See  Probate  proceedings 
Error  in  certificate — See  Certificate  of  title 

Establishing  title — 

registration  included  in  action  for.  See  Registration — 
in  other  proceedings. 

Estate  in  lands — See  Lands 

Estates  of  deceased  persons — See  Executor 

Evidence — 

certified  copy  of  certificate  to  be  used  as 27  67 

(43)  Order  for 68 

certificate  of  title  conclusive  in  certain  suits 41,  41  73 

register  and  certified  copy  as 42  73 

Examiner  of  titles — 

registrars  can  not  act  as 4                 19 

court  may  appoint  one  or  more  and  refer  abstract  to.  .11, 18       40,  56 

shall  be  attorney  in  good  standing,  etc 18                 56 

compensation  of  and  by  whom  paid 18                  56 

(26)   Order  referring  case  to 56 

power  of  considered  56 

shall  examine  into  title  and  report 19 

report  must  be  filed  before  decree  can  be  entered ....  19                 57 

(28)  Report  of 

(29)  Report  approved 60 

(30)  Report  considered  and  further  proof  ordered 60 


122  INDEX 

Section  Page 

Execution— 

levy  certified  to  registrar 92                 96 

(70)  Certificate  of  levy 96 

no  lien  arises  until  filing  and  entry  of  certificate 92                 96 

when  levy  disposed  of,  certified  to  registrar 90,96  96,98 

(75)  Certificate  of  sheriff  of  release  of  levy 98 

certificate  of  release  authority  for  registrar  to  cancel  96                 98 

Executor  or  administrator — 

registration  of  estate  applied  for  by 5  23,  29 

may  apply  for  registration  in  probate  proceedings 17 

See  Registration  In  other  proceedings. 

what  shall  be  shown  in  certificate  issued  to 23  63 

action  for  recovery  of  estate  of  deceased  brought  by    45  74 
may  file  petition  for  registration,  in  Probate  proceed- 
ings         46  74 

when  transferee,  certificate  must  show  name  of  de- 

ecased    58  81 

has  no  power  of  sale  as  such  of  land  registered  in  his 

name  74  87 

sale  made  by  must  be  confirmed 74  87 

decree  confirming,  conclusive  evidence  of  regularity. .     74  87 

certificate  issued  to  purchaser,  what  to  contain 74  87 

(60)  Order  for  certificate  on  confirmation  88 

if  power  of  sale  given  executor  by  will,  court  will 

direct  registrar  to  enter  words  "with  power  of  sale"  75                 88 

(61)  Order  that  such  words  be  registered 88 

sale  must  be  confirmed  75                 88 

(62)  Order  In  decree  confirming  for  certificate 88 

certificate  conclusive  evidence  In  favor  of  all  depend- 
ing thereon 76                  88 

False  swearing — 
how  punished  112  109 

Fees — 

allowed  registrar  under  this  act  100  103 

how  accounted  for  and  disbursed 100  103 

Fee  simple — 

required  for  initial  registration,  note 21 

must  be  registered  before  any  lesser  estate  can  be      7  38 
estate  of  deceased  person  may  be  registered  in  Pro- 
bate proceedings 46                  74 

Felony — 

in  relation  to  registered  land,  and  penalty Ill  108 

no  conviction  to  affect  remedy  at  law 113  109 

Forging — 

seal  of  registrar,  penalty  for 112  109 

conviction  for  not  to  affect  remedy  at  law  or  equity. .  113  109 

Forms — 

table  of 113 

Fraud — 

in  procuring  registration   34,  36  71,  72 

same  remedies  for,  as  though  land  not  registered.  .37, 106  72, 107 

but  not  to  affect  title  of  registered  owner  who  has 

taken  bona  fide 37, 106  72, 107 

forged  deed  void,  but  title  of  bona  fide  registered 

owner  not  affected 38  72 

person  defrauded  has  claim  on  assurance  fund . .  105,  Sub.  2  106 

penalty  for  procuring  certificate  or  entry  by Ill  108 


INDEX  123 

Section  Page 

Grantee — 

full  name,  etc.,  to  be  shown  In  instrument 54  79 

Guaranty — 

behind  a  registered  title 6 

Guardian — 

application  for  registration  made  by 5  23,  28 

shall  bring  action  to  protect  rights  of  ward 45  74 

Guardian  ad  litem — 

appointed  for  minors,  etc 13  47 

(21)  Appointment  of  48 

Hand  writing — 

penalty  for  forging 112  109 

Highway — See  Public  way 
Homestead — 

petition  must  state  as  to 5                  22 

what  it  consists  of,  note 

both  spouses  must  join  in  registration  of 5                  23 

and  in  transfer  of  56 

noted  in  decree 51 

noted  In  certificate  64 

Husband  or  wife — 

name  and  residence  set  forth  in  petition 5  21,  26 

name  of  in  decree 15  49,  51 

both  must  join  in  registration  of  community  or  home- 
stead  property   5  23 

rights  of,  set  forth  in  decree 15  49 

names  of  both  in  certificate  of  commuity  property..  15  50 

both  must  join  in  transfer  of  homestead 56  81 

and  in  disposition  of  community  property  57  81 

Illinois — 

operation  of  Torrens  system  in  8 

Imprisonment — 

when    person   under,    may   commence    suit   for   loss 

through  this  act 105,  Sub.  3 107 

for  felony  and  forgery Ill,  112  109 

Incumbrances — See  Liens 
Indices — 

of  property,  how  kept  by  registrar  102  104 

of  names,  how  kept  103  105 

Infant — See  Minor 

Ink — 

India  and  indelible  may  be  required  in  registration. .  110  108 

registrar  must  use  in  new  certificate  and  memorials  110  108 

In  rem — 

decree  for  registration  in  nature  of  decree  in  rem 16  53 

Insane  person — See  Disability 
Insolvency  proceedings — See  Assignee  in  In- 
solvency ;  and  Probate  Proceedings 
Instruments  of  transfer — See  also  Transfer 

made  in  any  authorized  form 48,  53  76,  79 

endorsement    on    duplicate    certificate    sufficient    to 
transfer    53  79 


124  INDEX 

Section  Page 

duplicate  certificate  must  be  presented  with  instru- 
ment to  registrar,  except  by  order  of  court 60                 83 

(56)  Order  allowing  memorandum  without  duplicate  83 

what  notations  on,  when  offered  for  filing 47,  53  75,  79 

not  to  be  filed  unless  notations  made 47                 75 

(47)  Notations  on  back  of 76 

what  to  contain  or  have  endorsed  on 54                 79 

how  marked  by  registrar  when  tiled 50                 78 

retained  and  kept  in  registrar's  ofllce 51                 78 

shall  take  effect  only  by  way  of  contract  and  as  au- 
thority to  register  55                  80 

when  filed  with  duplicate  certificate  in  office  of  regis- 
trar, transfer  complete  48                  76 

thereupon  certificate  will  be  issued  and  transfer 

noted  on  certificate 48                 77 

subject  to  tax  sale,  if  shown  in  last  certificate 56                 81 

conveying  homestead  or  community  property  both 

spouses  must  join 56,  57  81 

intended  to  create  a  charge,  how  endorsed  and  en- 
tered   on  certificate  60                 83 

when  in  duplicate  only  one  part  need  be  filed,  nota- 
tions on  other  parts 61                  83 

certified  copies  of,  how  marked,  force  and  effect  of  62                 84 
in  trust  or  conditional.    See  Trust  Deeds. 

may  be  returned  to  applicant,  when 20                  61 

forged  or  made  by  person  under  disability,  registra- 
tion void   38                   72 

but  title  of  bona  fide  registered  owner  not  affected  38                 73 

certified  copies  furnished  by  registrar  51                  78 

which  shall  be  received  in  place  of  original 52                  79 

penalty  for  alteration  of,  etc Ill               108 

penalty  for  forging  112               109 

Issue  of  fact — 

raised  by  pleadings,  may  be  tried  by  jury 14                 49 

Judgment  or  decree — 

proceedings  when  registered  land  sold  to  satisfy. ...  88                 95 

when  to  become  a  lien  on  registered  land 91                 96 

satisfaction  of,  to  be  certified  to  registrar 90,96  96,98 

(74)  Certificate  of  satisfaction 98 

appeal  from,  registrar  notified.    See  Appeal. 

Jury — 

may  try  issue  of  fact  rased  by  pleadings 14                 49 

Lands — See  also  Registered  land 

what  brought  under  operation  of  this  act 5                  20 

what  included  in  one  application  for  registration,  note  20 

what  interest  must  applicant  have  in,  notes 5                 20 

occupancy  of.    See  Occupancy. 

single  parcel,  lyingpartly  in  two  or  more  counties. . .  5                  23 

description  and  assessed  value  given  in  petition 5                 22 

when  map  or  plat  on  file,  how  described 6                 31 

when  plat  of,  must  accompany  application 6                  31 

if  bounded  by  public  or  private  way 6                 32 

(5)  Order  for  survey  to  determine  line  of 37 

if  bordering  on  navigable  stream  or  arm  of  the  sea. . .  13                  47 

adjoining.   See  Adjoining  Lands. 

when  State  has  claim  in,  adverse  to  applicant 13                 48 


INDEX  125 

Section  Page 

accurate  description  must  be  given  in  decree 15  49 

description  and  character  of  ownership  given  in  cer- 
tificate       15  50 

belonging  to  estate  of  decesed  person  how  registered, 

See  Executor, 
registration  of.     See  Registration. 

when  deemed  to  be  registered  31  70 

registered  lands.    See  Registered   Land. 

Land  register  docket — See  Books 

Land  Title  Law — Enacted  by  People 19 

Lease — See  also  Instruments  of  Transfer 

when  registered  land  subject  to,  though  not  noted  on 

last  certificate  34  71 

assignment  of.     See  Charge  on  Land. 

Levy — See   Execution 

Lien — See  also  Charge  on  Land 

petition  shall  state  as  to 5  22 

noted   in  decree    15  49 

by  book  and  page  of  record   15  50 

shown  in  certificate    15,  23,  24       50,  63,  65 

on  registered  land. 

land  subject  to  what  unregistered  34  71 

deemed  subject  to  this  act 44  73 

time  limit  for  asserting  adverse 45  74 

becomes  charge  upon  registration    59  82 

on  undivided  interest — when  land  partitioned 87  95 

for  public  improvements.    See  Ordinance. 

when  judgment  becomes   91  96 

when  levy  becomes 92  96 

when  mechanics  lien  attaches 93  97 

not  to  affect  until  entered  on  register 95  98 

Limitation,  title  by — See  Prescription 
Lis  pendens — 

filing  of,  not  required  when 10  40 

when  suit,  etc.,  deemed  to  be 89  95 

Loss  of  duplicate  certificate — 

certified  copy  of  original  issued 27                 67 

no  transfer  of  land  until  27                 67 

(39)  Application  for  certified  copy  67 

(40)  Order  granting  without  notice 67 

(41)  Notice  of  application  ordered   68 

(42)  Order  granting  after  hearing  68 

Lunatic — See  Disability 
Man — 

when  notice  of  filing  petition  may  be  sent  by 12                 43 

(18)  Affidavit  of,  by  other  than  sheriff 46 

how  notices,  etc.,  served  by,  after  registration 54                 79 

(51)   Certificate  of  service  by   80 

Map  or  plat — 

how  referred  to  in  petition  6  31 

no  copy  need  be  attached  to  notice  of  petition 12  43 


126  INDEX 

Section  Page 

Marriage — 

statement  made  as  to,  in  petition 5  21, 26 

In  decree  15  49,  51 

in  certificate 23  63,  64 

owner's  name  changed  by.   See  Certificate  of  Title. 

Massachusetts — 

torrens  system  in  7 

Mayor — 

when  notice  of  petition  given  to 13                 47 

Mechanics  lien — See  Lien 

Memorial — 

lesser  estate  to  be  entered  on  certificate  as 7,  60  38,82 

form  for 65 

carried  forward  on  all  certificates  43                 73 

on  cancelled  certificates  26                 66 

(37)  when  one  issued  for  several 66 

(38)  When  several  issued  for  one   66 

binding  on  owner  and  all  claming  under  him 60                 83 

duplicate  certificate  presented  before  entry  of 60 

(56)  Order  allowing  entry  without  83 

court  may  determine  form  of 99               102 

(81)  Form  referred  to  court  by  registrar 102 

(82)  Same  on  suggestion  of  party 102 

(83)  Order  prescribing  form   102 

must  be  made  with  India  or  indelible  ink 110               108 

Minor — See  also  Disability 

how  application  for  registration  made  by 5            21,  28 

decree  to  state  age  and  custody  of  estate 15                 49 

certificate  to  state  age 23                 63 

Mortgage — See  also  charge  on  Land 

how  marked  when  filed  with  registrar  50                 78 

like  forms  as  in  other  cases 53                  79 

takes  effect  as  contract  and  authority  to  register 55                 80 

on  filing  of,  land  becomes  mortgaged  55                 80 

upon  registration  becomes  a  lien 59                 82 

notations  made  by  registrar  on  filing  of 60                 82 

how  foreclosed 65                  85 

(58)  Notice  of  suit  to  foreclose 85 

on  undivided  interest,  when  land"  partitioned 87                 95 

Municipal  corporation — 

becoming  purchaser  at  tax  sale.   See  Tax  Sale. 

Names — 

of  applicants  for  registration  5                 21 

of  persons  holding  adverse  interests   5                  22 

correction  or  change  of  in  certificate.    See  Certificate 

of  Title, 

indices  of,  to  be  kept  103               105 

Navigable  stream — •• 

when  land  borders  on,  notice  13                 47 

Newspaper — 

designated  by  the  court  for  publication  of  notices,  etc.  12                 42 

(11)  Order  designating 41 


INDEX  127 
Section           Page 

Next  friend — ' 

when  action  brought  by  45                 74 

Notation — 

on  instruments  filed  with  registrar  47,54  75,79 

(47)  On  back  of  deeds,  etc 76 

Notice — 

of  filing  of  petition  for  registration, 

when  court  will  order  11                 40 

(11)  Order  for 41 

(12)  Same  on  report  of  examiner 41 

(13)  Order  refusing  and  dismissing  petition 42 

(14)  Same  on  report  of  examiner 42 

what  to  contain,  to  whom  directed,  how  served . .  12                 42 

(15)  Notice  of  filing  petition   44 

(16)  Publication  of,  approved  45 

service  of,  how  made  12            42,  43 

on  defendant  consenting  12                  44 

must  in  all  cases  be  published 12                 42 

who  served  personally  12                 43 

who  served  by  mail 12                 43 

on  owners  of  adjoining  land 12                  43 

by  sheriff  or  other  person 45 

(17)  Affidavit  of,  by  other  than  sheriff 46 

(18)  Same  by  mail 46 

on  whom  when  line  of  way  to  be  determined 13                 47 

when  land  borders  on  stream  or  sea 13                  47 

when  State  has  adverse  interest 13                 47 

of  intention  to  include  registration  in  other  proceed- 
ings    17                  54 

(23)  Application  for  55 

(24)  Order  for 55 

(25)  Notice  of  intention   55 

how  published  and  served  17                 55 

of  filing  petition  for  registration  in  probate  proceed- 
ings    46                  74 

kept  in  registrar's  office  51                 78 

how  served  by  mail  after  registration 54                 79 

(51)  Certificate  of  service  by  mall 80 

different  or  other  service  may  be  ordered 54                 80 

(52)  Order  for 80 

of  change  of  address  of  grantee  in  deed 54                 79 

(50)  Notice  of 80 

of  suit  to  foreclose  mortgage  65                 85 

(58)  Notice  of  pendency  of  85 

of  purchase  of  registered  land  at  tax  sale.   See  Tax 

Sale. 

of  pendency  of  suit,  etc.,  to  create  11s  pendens 83                 95 

of  mechanics  lien 93                 97 

of  ordinance  for  improvement  of  street,   etc.     See 

Ordinance 

of  filing  petition  for  alteration  of  certificate 98                 99 

(77)  Order  for  summons  100 

Objection — 

to  registration  by  interested  person   12                 43 

(46)  Answer  of,  objecting  46 


128  INDEX 

Section  Page 

Occupancy  of  Land — 

stated  In  petition  5            22, 28 

must  be  proven  as  alleged,  note  22 

occupant  served  with  notice  of  petition  12                 43 

character  of,  stated  in  decree  61                 52 

Occupation — 

of  applicant  for  registration  stated  in  petition 5      21. 25.  26 

Ordinance — 

for  public  improvement,  notice  filed  with  registrar. .  94                 97 

(71)  Notice  of  97 

(72)  Notice  of  repeal 97 

(73)  Notice  of  lien  satisfied  98 

Owner — 

may  bring  land  under  operation  of  this  act 5                 20 

who  may  unite  in  one  application,  note 20 

Registered  owner 

holds  land  subject  to  what  estates 34,  36  71,  72 

when  not  affected  by  fraud  or  forged  deed 37,  38  72 

nor  by  unregistered  estate 39                 73 

register  as  evidence  that  he  is  entitled  to  land ....  42                 73 

Ownership — 

character  of  shown  in  certificate 15                 50 

Papers — 

kept  in  office  of  registrar  51                 78 

taken  out  on  subpoena  duces  tecum 51                  78 

Partition  of  registered  land — 

owner  may  bring  action  for 104               l(>5 

certificate  conclusive  proof  of  valid  title 41                  73 

all  persons  shown  on  register  made  parties 84                 94 

certificate  issued  on  report  of  commissioners   con- 
firmed     85                  94 

or  on  sale  of  land 86                 94 

(95)  Certificate  of  officer  making  sale 95 

lien  on  undivided  interest  attaches  to  what 87                  95 

registration  in  proceedings  for — See  Registration. 

Penalty — 

for  fraud  in  procuring  registration  Ill                108 

for  forging  seal  of  registrar  112               109 

Petition  for  registration — 

basis  of  registry  proceedings   16, 17 

to  Superior  court,  filed  with  county  clerk 5                  21 

facts  to  be  set  forth  in 5,6      21,  22,  31 

caption  for   23 

(1)  Petition  for  registration    24 

(2)  Same — personal  form 25 

(3)  General  petition  for  registration 26 

endorsed  by  clerk  and  entered  in  land  register  docket  6                 36 

when  adverse  possession  claimed,  what  alleged  in . .  6                  33 

how  amended  9                  39 

(9)  Order  for  amended  39 

(10)  Same  on  motion  of  applicant 39 

date  of  filing  deemed  date  of  registration 15                  50 

filed  in  probate  proceedings.    See  Registration. 

may  be  withdrawn  by  applicant  20                 60 

certified  copies  filed  in  counties  where  any  part  of 

land  lies  .                               46                 75 


INDEX  129 

Section  Page 

Plat — See  Map- 
Policy  of  title  insurance — 

made  starting  point  for  abstract  of  title 6  35 

Possession — See  Adverse  possession. 

no  length  of  shall  give  adverse  title  after  registration  35  72 

in  action  for,  certificate  evidence  of  valid  title 41  73 

character  of  stated  in  petition  6  33 

how  proven,  note 35 

Power  of  attorney — See  Attorney  in  fact 

Power  of  sale — 

when  given  in  trust  deed,  trustee  may  deal  with  land 

as  owner  68  86 

how  noted  on  certificate  68  86 

when  none  given  in  trust  deed 69  86 

of  trustee  under  will 70  86 

when  given  in  will  to  executor.  See  Executor. 

Prescription — 

title  by,  note   35 

Private  way — 

when  land  is  bounded  by  6  32 

Probate  proceedings — 

registration  of  title  in.    See   Registration. 

change  in  status  of  title  of  registered  land  made  in, 
as  provided  in  the  law  of  the  state 71  86 

court  in  its  decree  will  direct  registrar  to  issue  cer- 
tificate         72 

(59)  Order  In  decree,  for  certificate  of  memorial. .  87 

certified  copy  of  decree  also  deed,  etc.,  and  decree  of 
confirmation  filed  with  registrar   73,74  87 

Procedure — 

for  bringing  land  under  this  act 16 

Process — 

notice  of,  how  given  by  mail  54  79 

levy  of,  certified  to  registrar  92  96 

(70)  Certificate  of  levy  96 

disposal  of,  certified  to  registrar 90,  96  95,  98 

(76)  Certificate  of  release  98 

Publication  of  notice — See  Notice 
Public  improvements — See  Ordinance 

Public  way — See  also,  Street 

when  land  is  bounded  by,  what  stated  in  petition 6  32,  38 

(5)  Order  for  survey  to  determine  line  of 37 

to  whom  notice  to  be  given 13  47 

when  owner  holds  subject  to  right  of  though  not 

noted  on  certificate   34  71 

Purchasers — 

when  not  required  to  inquire  into  acts  of  trustee, 
grantor  68  86 

when  not  bound  to  inquire  into  regularity  of  sale. .     74  87 

of  registered  land  at  tax  sale.   See  Tax  sale. 

at  sale  in  partition,  certificate  86  94 

at  sale  of  registered  land  sold  on  judgment 88  95 

title  of,  not  affected  by  proceedings  to  correct  cer- 
tificate         98  99 


130  INDEX 

Section  Page 

Quieting  title — 

decree  ordering  registration  shall  have  effect  of....     16  63 

registration  may  be  included  in  action  for.    See  reg- 
istration. 

Receipt — 

to  be  given  for  certificate  of  title 22,  30  62,  70 

printed  or  pasted  in  book  *. 22  62 

form    63 

evidence  of  genuineness  of  owner's  signature 22  62 

Receiver — 

shall  file  certified  copies  of  proceedings  73  87 

Recorder  of  county — 

shall  be  registrar  of  titles  1  19 

official  bond  of,  shall  apply  to  duties  as  registrar,  and 

deputies   2  19 

duties  of,  as  registrar.    See  Registrars. 

recovery  on  bond  of  only  for  gross  negligence,  etc.  2  19 

may  appoint  deputy  registrars.    See  Registrars. 

Recovery  of  land — 

action  for,  of  registered  land  must  be  brought  within 
one  year 45  74 

Referee — 

sending  case  to,  to  report  facts,  note 18  57 

(27)  Order    57 

when  deputy  registrar  may  act  as 108  108 

Register  of  titles — 

form  for 64 

kept  by  registrar,  what  entered  in 29  70 

and  certified  copies  of,  received  as  evidence 42  73 

correction  and  alteration  of,  how  made.    See  Certifl-  • 

cate  of  title, 

penalty  for  fraudulently  procuring  entry  on Ill  108 

Registered  land — See  Lands 

guaranty  behind  title  to  5 

no  adverse  title  acquired,  by  possession 35  72 

purchaser  of,  need  not  inquire  into  registration 36  72 

dealings  with,  deemed  subject  to  terms  of  this  act. .     44  73 

no  action  for  recovery  of,  after  one  year 45  74 

how  transferred.    See  Instruments  of  transfer. 

sale  of,  by  executor.   See  Executor. 

sale  of,  for  tax  or  assessment.  See  Tax  sale. 

partition  of.    See  Partition. 

lien  on.   See  Lien. 

public  improvement  made  on.   See  Ordinance. 

right  of  eminent  domain  in,  not  affected  by  this  act.  101  104 

may  be  platted  or  subdivided.    See  Subdivision. 

Registered  Owner — See  Owner 

Registrar — 

recorder  of  county  shall  be  1  19 

official  bond  of  2  19 

liability  on  bond  2  19 


INDEX  131 

Section  Page 

governed  by  laws  relating  to  recorders 1  19 

is  a  county  officer  1  19 

prohibited  from  practicing  law 4  19 

how  act  as  searcher  of  titles 4  19 

shall  issue  certificate  of  title,  when 15,  22  50,  62 

books  to  be  kept  by  22,  29  62,  70 

complaint  against,  may  be  filed  in  the  superior  court    33  71 
duty  of,  in  marking  deeds  and  other  instruments    filed 

in  his  office  50,  60,  63      78,  82,  84 

authorized  to  cancel  memorial,  when 96  98 

may  apply  for  correction  or  change  in  certificate 98  99 

may  refer  form  of  memorial  to  court  for  determina- 
tion        99  102 

fees  of,  for  services  under  this  act 100  103 

shall  keep  property  and  name  indices  102, 103        104, 105 

may  appoint  deputies.   See  Deputy  registrar. 

duty  of,  to  see  that  documents  are  made  out  with 

view  to  permancy  110  108 

remedy  in  law  against  him  and  his  bond,  not  affected 

by  conviction  of  felony 113  109 

rules  and  regulations  made,  not  to  work  hardship. . . .  114  109 
Registration — 

advantages  of  system  5 

in  other  States   7 

application  for.    See  Application  for  registration, 
petition  for.    See  Petition  for  registration, 
what  lands  brought  under.    See  Lands. 
of  a  tax  title.   See  Tax  title, 
assent  to.    See  Assent. 

party  interested  may  object  to 12  43 

(19)  Answer  objecting  to  46 

ordered  by  court  on  hearing 14  49 

decree  for  registration 15  49 

what  to  be  stated  in 15  49 

in  convenient  form  for  transcription  on  certificate    15  50 

may  be  appealed  from 15  50 

filed  with  clerk  and  certified  copy  with  registrar. .     15  50 

(22)  Decree  for  registration  50 

shall  be  in  nature  of  decree  in  rem,  quiet  title,  and 

conclusive  against  rights  of  all  persons 16  53 

date  of,  deemed  date  of  registration  15  50 

not  entered  until  after  report  of  examiner 19  57 

effected  by  filing  decree  and  issuing  certificate 15  50 

when  land  deemed  to  be  registered 31  70 

when  transfer  and  other  dealings  deemed  registered     32  70 
but  relate  back  to  time  of  filing  instruments  in  reg- 

istrator's  office   32  70 

confers  title  subject  to  what  estates 34  71 

adverse  title  not  acquired  by  any  length  of  possession    35  72 
void  if  instrument  forged  or  made  by  person  under 

disability  38 

but  not  to  affect  title  of  bona  fine  subsequent  pur- 
chaser    38 

gives  title  against  unregistered  claims  39  73 

bringing  land  under  implies  agreement,  etc 44 

of  land  lying  partly  in  another  county 46  75 

registration  in  other  proceedings  17  54 

(23)  Application  for  notice  of  intention  

(24)  Order  that  notice  of  intention  be  given 55 

(25)  Notice  of  Intention  

order  for  registration,  how  made  56 


132  INDEX 

Section  Page 

Release  or  satisfaction — See  Charge  on  land 
Report — 

to  be  made  by  examiner  of  titles.    See  Examiner  of 

titles, 
of  commissioners  in  partition  must  be  confirmed 85  94 

Residence — 

of  applicant  given  in  petition  5  21,  25,  26 

noted  in  decree  51 

noted  in  certificate 64 

of  grantee  contained  in,  or  endorsed  on  instrument. .  54  79 

change  of  endorsed  by  registrar  54  79 

(50)  Notice  of  change  of  address  80 

Reversal — 

of  judgment  or  order  certified  to  registrar 90,  96  96,  98 

Right  of  way — 

when  land  subject  to  though  not  noted  on  certificate    34  71 

Satisfaction — See  Release 
Sea — 

when  land  borders  on  arm  of,  notice 13  47 

Seal — 
of  registrar,  penalty  for  forging   112  109 

Searcher  of  titles — See  Examiner  of  titles 
Separate  property — 

defined,  note 22 

court  will  determine  as  to 14  49 

certificate  shall  show  as  to 15  60 

Severalty — 

registration  of  land  held  in,  by  one  of  applicants          5  22 

Service — 

of  notices.   See  Notice. 

of  process.   See  Process. 

proof  of  made  by  certificate  of  clerk,  when 54  79 

Sewer — See  Street 
Sheriff — 

to  certify  levy  to  registrar 92  96 

(70)  Certificate  of  levy  96 

to  certify  disposal  of  process  to  registrar 90,  96  95,  98 

(75)  Certificate  of  release  98 

Sidewalk — See  Street 

Signature — 

genuineness  evidenced  by  receipt  22  62 

Spouse — See  Husband  or  wife 
State — 

tax  title  derived  through  sale  by 8  38 

having  adverse  title,  notice  of  petition   13  47 

becoming  purchaser  at  tax  sale 77  89,  38 

subrogated  to  rights  of  plaintiff,  when 105,  Sub.  2  106 


INDEX  133 

Section  Page 

State  Controller — 

shall  audit  and  certify  amount  ordered   paid   from 
assurance  fund   105,  Sub.  2  106 

State  treasurer — See  Assurance  fund 
Stream — See  Navigable  stream 
Street — See  also  Public  way 

survey  must  show  relation  of  land  to 6  32 

improvement  of.    See  Ordinance. 

Subdivision — 

how  plat  of,  referred  to  in  petition 6  31 

of  registered  land,  what  certificates  given 49  77 

(49)  Endorsement  on  certificate  of  tract 78 

made  as  in  case  of  unregistered  land  109  108 

when  owner  may  furnish  forms  of  certificates ....  109  108 

Substitution  of  parties — See  Death;  and  Transfer 

Suit — 

time  limitation  of,  for  recovery  of  land,  etc 45  74 

to  foreclose  mortgage.    See  Mortgage. 

against  registered  land,  when  deemed  lis  pendens. .     89  95 

for  compensation  out  of  assurance  fund.    See  Assur- 
ance fund. 

disposal  of  certified  to  registrar 96  98 

(74)  Certificate  of  clerk  of  98 

In  exercise  of  right  of  eminent  domain 101  104 

by  person  deprived  of  land  through  this  act.    See 
Assurance  fund. 

Summons — 

order  for  on  petition  to  correct  certificate 98  99 

(77)  Order  that  summons  issue  100 

(78)  Form  of  summons   101 

Supervisors  of  county — 

notice  to,  when  line  of  public  way  to  be  determined . .     13  47 

furnish  books,  etc.,  for  carrying  out   provisions  of 

this  act 100,  Sub.  3  104 

approve  compensation  of  deputy  registrars 108  107 

Sureties — See  Bond 

Survey — 

when  required  16 

when  made  and  what  to  show 6            31,32 

ordered  by  court  at  any  time 6                  32 

(4)  Order  for 36 

(5)  Order  for,  to  determine  line  of  way 37 

California  statutes  relating  to  110 

general  requirements  112 

form  of  report  of 112 

Swearing — 
penalty  Tor  false 112  109 

Tax  collector — 

shall  file  notice  when  State  or  Municipality  becomes 

purchaser  at  tax  sale  77  89 

(64)  Notice  of  land  sold  to  State  90 


134  INDEX 

Section  Page 

Tax  deed — 

of  registered  land,  shall  not  be  issued  unless  notice 

of  sale  filed  77                 89 

may  be  presented  to  registrar  and  memorial  entered  78                 90 

shall  have  effect  only  as  agreement  to  transfer 78                 90 

except  when  issued  to  state  78                 90 

holder  of,  must  file  application  for  a  decree 78                 90 

(65)  Application  for  decree  91 

(66)  Order  that  notice  be  given  of  application 92 

(67)  Notice  of  application  92 

court  will  find  ownership  and  enter  decree 80                 93 

(68)  Decree  showing  title  under  tax  deed 93 

when  issued  to  State  or  Municipality 81                  93 

Taxes — 

payment  when  adverse  possession  alleged  in  petition      6  33 

how  proven,  note   33 

when   registered   land   held   subject  to,  though  not 
noted  on  certificate   34  71 

sale  for.  See  Tax  sale. 

Tax  sale — 

general  law  declares  all  delinquent  land  sold  to  State  38 

if  not  redeemed  sold  by  State  after  five  years ....  39 

of  registered  land 

when  shown  in  last  certificate,  transfer  subject  to  56                  81 

fact  shown  on  new  certificate,  note  65 

notice  of  must  be  filed  by  purchaser 77                 88 

(63)  Notice  of  purchase  90 

when  filed  by  tax  collector 77                 89 

(64)  Notice  of  sale  to  State 90 

memorial  of  notice  and  copies  mailed 77                 89 

when  sold  to  municipality  or  State  hereafter  new 

certificate  issued  81  93 

on  certificate  of  redemption,  memorial  of  sale  can- 
celled    83  94 

Tax  title — 

first  registration  of   8  38 

when  derived  through  direct  purchase  at  tax  sale, 

note   38 

five  years  adverse  possession  required,  note 38 

when  derived  through  purchase  from  State,  note. .  38 

five  years  possession  not  required,  note 39 

application  for  registration,  how  made,  note 27  27 

of  registered  land,  how  certificate  obtained.   See  Tax 
deed. 

Tenants  in  common — 

how  named  in  petition,  note 26 

certificates  to,  how  made  25  66 

lien  given  by  one,  attaches  how,  on  partition 87  95 

Testator — 

power  of  sale  given  by.  See  Executor. 

Title — 

what  required  for  registration,  notes 20,  21 

may  be  established  by  chain  or  by  prescription,  notes  21,  33 

will  be  determined  by  court.    See  Registration — de- 
cree. 


INDEX  135 

Section  Page 

to  be  examined  into  by  examiner  of  titles 19  57 

forever  quieted  by  decree  for  registration 16  53 

of  registered  owner.   See  Owner. 

certificate  of.  See  Certificate  of  title. 

of  registered  land  not  affected  by  instrument,  unless 

notations  made  thereon  47  75 

not  affected  by  lien  until  memorial  entered 95  98 

Title  insurance — 

policy  of,  starting  point  for  abstract  6  35 

Torrens  land  title  law — 

enacted  in  California 19 

former  law  declared  constitutional  10 

Torrens  system — 

advantages  of 5 

in  other  states 7 

Torrens  title — 
guarantee  behind  5 

Torrens  title  assurance  fund — See  Assurance  fund 
Tort — 

person  not  deprived  of  right  of  action  in,   by  this 
act   105,  Sub.  2  106 

Town — See  City 

Transfer — See  also  Instruments  of  transfer 

during  proceedings  for  registration  21                  61 

(34)  On  transfer  of  interest,  action  continued 62 

(35)  Same,  transferee  substituted  62 

not  to  be  made  when  certificate  lost,  until  new  one 

issued  27                  67 

when  deemed  to  be  registered   32                  70 

person  taking,  need  not  inquire  into  circumstances  of 

registration    36                  72 

of  registered  land,  how  effected.  See  Instruments  of 

transfer. 

of  part  only  of  land,  certificate  given  49               77 

may  be  made  by  endorsement,  on  duplicate  certificate, 

form  given   53                 79 

made  subject  to  tax  sale,  noted  on  last  certificate..  56                 81 
of  homestead  or  community  property,  both  spouses 

must  join   56,  57  81 

of  charge  on  registered  land,  how  made 63                 84 

(57)  Memorial  of 84 

(57a)  Same,  of  transfer  of  part  84 

Transferee  of  registered  land — 

need  not  inquire  into  previous  registration  36                 72 

affidavit  to  be  furnished  by  58                 81 

(53)  Affidavit    82 

if  executor  or  administrator,  affidavit 58 

(54)  affidavit  by  executor  82 

if  assignee  or  trustee  58                 81 

of  charge  on  land  entitled  to  certified  copy  of  instru- 
ment      63                  84 

under  deed  from  trustee,  with  power  of  sale,  need 
not  inquire  into  acts  of  trustee  68  86 


136  INDEX 

Section  Page 

Treasurer  of  State — See  Assurance  fund 

Trust — 

noted  in  certificate  24,  67      64,  65,  86 

unregistered,  not  to  affect  transferee  of  registered 

land   36  72 

not  to  prevail  against  title  of  registered  owner 39  73 

Trust  deed — 

words  "in  trust"  to  be  noted  on  certificate 67  86 

when  it  contains  the  words  "With  power  of  sale" 

trustee  may  deal  with  land  as  the  owner 68  86 

when  it  does  not  contain  words  "With  power  of  sale" 
trustee  has  no  power  to  deal  with  land  without 
order  of  court  69  86 

Trustee — 

power  of  sale  under  trust  deed.   See  Trust  deed. 

under  will  has  power  to  deal  with  land  as  his  own, 
unless  expressly  withheld  by  terms  of  will 70  86 

in  bankruptcy.   See  Assignee  in  insolvency. 

when  transferee,  name  of  insolvent  or  bankrupt  stat- 
ed in  certificate  58  81 

Undertaking — See  Bond,  official 

Unregistered  estate — 

when  registered  owner  not  affected  by 34,  36,  39      71,  72,  73 

Verification  of  abstracts 6  35 

Way — See  Public  way 
Wife — See  Husband  or  wife 

Will — 

excepted  from  provision  making  instrument  of  con- 
veyance a  contract  only  55  80 

power  of  sale  by  trustee  under.   See  Trustee. 

when  executor  has  power  of  sale  under.   See  Executor. 


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UNIVERSITY  OF  CALIFORNIA 

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